No. 281PA13 FIFTEEN B DISTRICT

SUPREME COURT OF NORTH CAROLINA

*****************************************

GEORGE KING, d/b/a GEORGE’S ) TOWING AND RECOVERY ) ) Petitioner-Appellant, ) ) From Orange County v. ) No. 12 CVS 713 ) No. COA 12-1262 TOWN OF CHAPEL HILL, ) ) Respondent-Appellee. )

******************************************

PLAINTIFF-APPELLANT’S BRIEF

******************************************* ii

INDEX

INDEX………………………………………………………………………...……ii

TABLE OF CASES AND AUTHORITIES……………………………….………iv

ISSUES PRESENTED…………………………………………………………...... 1

STATEMENT OF THE CASE…………………………………………….………2

STATEMENT OF GROUNDS FOR REVIEW..………………………….….……3

STATEMENT OF THE FACTS…………………….…………………….……….4

ARGUMENT:

I. THE TRIAL COURT CORRECTLY HELD CHAPEL HILL’S TOWING ORDINANCE TO BE INVALID BECAUSE ITS ENABLING LEGISLATION WAS ULTRA VIRES AND IN VIOLATION OF ARTICLE II §24(1)(J) OF THE N.C. CONSTITUTION……………………….12

II. EVEN IF THE TRIAL COURT IS FOUND TO HAVE BEEN IN ERROR IN HOLDING THAT N.C. GEN. STAT. § 20-219.2 WAS AN UNCONSTITUTIONAL LOCAL ACT, CHAPEL HILL’S TOWING ORDINANCE IS NONETHELESS ULTRA-VIRES BECAUSE IT EXCEEDS THE AUTHORITY GRANTED UNDER THE STATUTE……………………………………………………..36

III. THE COURT OF APPEALS’ EXPANSION OF N.C. GEN. STAT. § 160A-174 VIOLATES MR. KING’S DUE PROCESS RIGHTS…………………………………………...40 iii

IV. THE COURT OF APPEALS CONTRADICTED THE COURT’S HOLDINGS CONCERNING STANDING TO FILE A DECLATORY ACTION PURSUANT TO N.C. GEN. STAT. § 1-264………………………………….……….46

V. THE TRIAL COURT CORRECTLY FOUND THAT THE NORTH CAROLINA GENERAL ASSEMBLY CREATED A COMPREHENSIVE REGULATORY SCHEME REGARDING CELL PHONE USE BY MOTORISTS AND THAT THE TOWN OF CHAPEL HILL’S CELL PHONE ORDINANCE WAS THUS PREEMPTED BY STATE LAW…………………………………...54 CONCLUSION…………………………………………………………………...60 CERTIFICATE OF SERVICE……………………………………………………62 iv

TABLE OF AUTHORITIES

Cases:

Adams v. N.C. Dep’t of Natural & Econ. Res., 295 N.C. 683, 249 S.E.2d 402 (1978)……………………...……………………………………..14

Antonello v. City of San Diego, 16 Cal. App. 3d 161, 93 Cal. Rptr. 820 (4th Dist. 1971)……………………...... ………………………43

Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)….………..…48

Bellsouth Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721 (2005) ……….……………….……………….……………...22, 23

Bentley v. North Carolina Ins. Guar. Ass'n, 107 N.C. App. 1, 418 S.E.2d 705 (1992)… .….……………….……………….……………….…...41

Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994)……21, 22, 23

Bryarly v. State, 232 Ind. 47, 111 N.E. 2d 277 (1953)… ………….…….……….50

Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49………………….….…………….50

Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968)….……………..20

City of Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1, 178 S.W.2d 847 (1944)… ……………….……………….……………….……………….………..43

City of Raleigh v. Norfolk S. Ry. Co., 275 N.C. 454, 168 S.E.2d 389 (1969)…. ..…………….……………….…………………….18, 19

Clark’s Greenvillle, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966). ………….11

Commonwealth v. Reyes, No. SA-228-2010, 2011 Pa. Dist. &Cnty. Dec. LEXIS 90, at *7 (Pa. D. & C. May 4, 2011)………………………………………………58

Conner v. N.C. Council of State, 365 N.C. 242, 716 S.E.2d 836 (2011)…………51 v

Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002)...…………………………………………..54, 55, 56, 57, 58

De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940)…………...43

Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200 (2006)…. ………….……………….……………………………12

Fantasy World, Inc. v. Greensboro Bd. Of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205 (2004)… ………….…….………….…………………………….34

Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968)..………….48

Goldston v. State, 361 N.C. 26, 637 S.E.2d 876 (2005)………...…………….49, 50

Greene v City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975)…………19

High Rock Lake Partners, LLC v. N.C. DOT, ___ N.C. ___, 735 S.E.2d 300 (2012)…… ….……………….……………….……………...16, 17

High Point Surplus Company, Inc. v. Pleasants, 264 N.C. 650, 142 S.E.2d 697 (1965)… ………..……………….……………….………………12

Hodges v. Mecklenburg County Zoning Board of Adjustment, 148 N.C. App. 52, 557 S.E.2d 631 (2001)…...……………….……………….………………………11

Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605, 599 S.E.2d 365 (2004)…..……………….……………….……………….………51

Homebuilders Ass’n v. Charlotte, Inc. v. City of Charlotte, 336 N.C. 37, 43, 442 S.E.2d 45 (1994)… ……………….……………….……………….……………..21

In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976)……………. …………………41

In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978)…………… ……………….49

Jernigan v. State, 279 N.C. 556, 184 S.E. 2d 259 (1971)… ………………….50, 51

vi

King v. Town of Chapel Hill, ___ N.C. App. ___, 743 S.E.2d 666 (2013).…passim

Lanvale Props., LLC v. Cnty. of Cabarrus, N.C., 366 N.C. 142, 731 S.E.2d 800, 808 (2012)…. ……………….……………….…………….passim

Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499 (1894)……………………………42

Lemons v. Old Hickory Council, BSA, 322 N.C. 271, 367 S.E.2d 655 (1988)…..22

Lowe v. Tarble, 313 N.C. 460, 329 S.E.2d 648 (1985)…………….……………..42

Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351….……...... 49

Malloy v. Cooper, 356 N.C. 113, 565 S.E.2d 76 (2002)… ………….……...... 51

McEwen Funeral Service, Inc. v. Charlotte City Coach Lines, Inc., 248 N.C. 146, 102 S.E.2d 816 (1958)… ……………….……………….……………….……….57

McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961)…………… ………13

Midulla v. Howard A. Cain Co., Inc., 133 N.C. App. 306, 515 S.E.2d 244 (1999)… ………………….…….………….……………………30

Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E.2d 695 (1959)…………….20

Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 123 S.E.2d 582 (1962)… ………………………………..………………………..49

Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981)…... …………….……………….……………….………..19

Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957)… ……………….………...43

Rosenbaum v. City of New Bern, 118 N.C. 83, 24 S.E. 1 (1896)………………...20

Sharpe v. Park Newspapers, 317 N.C. 579, 347 S.E.2d 25 (1986)……………….49

Smith v. City of Newbern, 70 N.C. 14, 1874 N.C. LEXIS 156 (1874)……..…….21

vii

Smith v. County of Mecklenburg, 280 N.C. 497, 187 S.E.2d 67 (1972)………....52

Smith v. Keator, 206 S.E.2d 203, 285 N.C. 530 (1974)… ……………….………34 Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999)…..…………….……………….……………...21, 22, 23, 25

Spruill v Lake Phelps Volunteer Fire Department, Inc., 351 N.C. 318, 523 S.E.2d 672 (2000)………………………………………………...... 56

Standly v. Town of Woodfin, 168 N.C. App. 134, 650 S.E.2d 618 (2007)………20

Stanley v. Dep't of Conservation & Dev., 284 N.C. 15, 199 S.E.2d 641 (1973)…..…………………………………………………….48, 53

State v. Baldwin, 205 N.C. 174, 170 S.E. 645 (1933)…………………………….16

State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949)...... 18, 43, 44

Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E. 2d 489 (1983)…19

State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996)………….. ……………..22

State ex rel. Utils. Comm'n v. Edmisten, 291 N.C. 451, 232 S.E.2d 184 (1977)………………………… ……………………………... 6, 30

State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972)… ……………………...19

State v. Hord, 122 N.C. 1092, 29 S.E. 952 (1898)… …………………………….19

State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982)… …………………………41

State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)… ………………………...42

State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812 (1978) …………………...…42

State v. Maynard, 195 N.C. App. 757, 673 S.E.2d 877 (2009)…………………...19

State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952)……………………………….18

viii

State ex rel. Cobey v. Simpson, 333 N.C. 81,423 S.E.2d 759 (1992)…………….22

State v Smith, 265 N.C. 173, 143 S.E.2d 293 (1965)…………………19, 41, 43, 44

State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988)…………………………41

State v. Thompson, 349 N.C. 483, 508 S.E.2d 277 (1998)…………………...41, 42

State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973)…………………………54

Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650 (1943)……….….….55

Summey Outdoor Advertising, Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 444 (1989)……….. ……………………………………………..40

Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 261 S.E.2d 21 (1979)………………………………..…………………………….49

Town of Atlantic Beach v. Young, 298 S.E.2d 686, 307 N.C. 422 (1983)….……43

Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821 (2001) …..……………………………………………………..…49

Town of Pine Knoll Shores v. Carolina Water Service, 128 N.C. App. 321, 494 S.E.2d 618 (1998) ..………………………………………………………..…49

Town of Washington v Hammond, 76 N.C. 33 (1877) …….………………….…54

Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981) ………..………………………………………………..…41

Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003)...passim

Statutes:

N.C. Gen. Stat. §§ 1-253-68...…………………………………………………….46

N.C. Gen. Stat. § 1-256…………...………………………………………………46

ix

N.C. Gen. Stat. § 1-264………………………………………………………..….46

N.C. Gen. Stat. § 7A-27(b)… ……………………………………………………...3

N.C. Gen. Stat. § 7A-31…………………………………………………………….4

N.C. Gen. Stat. § 14-360. ………………………………………………………...51

N.C.G.S. § 20-115……………………………………………………………...…56

N.C.G.S. § 20-137.3………………………………………………………………55

N.C.G.S. § 20-137.4………………………………………………………………57

N.C.G.S. § 20-137.4A………………………………………………………...56, 59

N.C. Gen. Stat. § 20-219.2……………………………………………….…..passim

N.C.G.S. § 20-219.2(a1)… ……………………………………………………….38

N.C. Gen .Stat. § 20-219.2(c) …………………………………………………….14

N.C. Gen Stat. § 20-219.2(d) ……………………………………………………..17

N.C. Gen. Stat. § 44A-2…………………………………………………………...30

N.C. Gen. Stat. § 148-62………………………………………………………….51

N.C.G.S. § 153A-121(a)………………………………………………………31, 32

N.C. Gen. Stat. § 160A-4……………………………………………………...21, 22

N.C. Gen. Stat. § 160A-174………………………………………………….passim

N.C. Gen. Stat. § 160A-174(a)……………………………………………….passim

N.C. Gen. Stat. § 160A-174(b)(1)………………………………………………..30

N.C. Gen. Stat. § 160A-174(b)(5)………………………………………………...54 x

N.C. Gen. Stat. § 160A-194…………………………………………………...30, 34

N.C. Gen. Stat. § 160A-304(a)……………………………………………………30

Session Laws:

Session Law 2001-46……………………………………………………………...18

Bills:

House Bill 31, (2011-12)………………………………………………………….59

House Bill 44 (2011-12)…………………………………………………………..59

House Bill 183 (2007)…………………………………………………………….57

House Bill 1104 (2005)…………………………………………………………..57

Senate Bill 12, (2009)……………………………………………………………..59

Senate Bill 22 (2009)……………………………………………………………...59

Senate Bill 36 (2011-12)………………………………………………………….59

Senate Bill 1289 (2005)…………………………………………………………...57

Municipal Ordinances:

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(1)……6, 38

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(2)…….6, 7

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(2)(b)…….7

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(3)……….7

xi

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(b)…………..7

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-304(a)…………..8

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-304(d)…………..8

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-305……………..8

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(a)………….9

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(b)…...9, 33, 38

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(c)…………..9

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(b)…………..9

Constitution of North Carolina:

N.C. Const. art. I, § 18……………………………………………...2, 47, 48, 52, 53

N.C. Const. art I, § 19…………………………………………………….40, 41, 46

N.C. Const. Art. II § 24(1)(j)……………………………………………………...13

N.C. Const. Art. II § 24(3)………………………………………………………...13

Rules of Appellate Procedure:

N.C. R. App. P. 15…………………………………………………………………4

N.C. R. App. P. 15(i)……………………………………………………………….3

Secondary Authorities:

Dan Meyer, Judge Overrules Town on Cell-Phone Driving Ban, RADIO COMM. REP., July 17, 2000……………………………………………………………….58

xii

David Owens, Local Government Authority to Implement Smart Growth Programs: Dillon’s Rule, Legislative Reform, and the Current State of Affairs in North Carolina, 35 WAKE FOREST L. REV. 671, 681 (2000)…………….……19, 24

No. 281PA13 FIFTEEN B DISTRICT

SUPREME COURT OF NORTH CAROLINA

*****************************************

GEORGE KING, d/b/a GEORGE’S ) TOWING AND RECOVERY ) ) Petitioner-Appellant, ) ) From Orange County v. ) No. 12 CVS 713 ) No. COA 12-1262 TOWN OF CHAPEL HILL, ) ) Respondent-Appellee. )

******************************************

PLAINTIFF-APPELLANT’S BRIEF

*******************************************

ISSUES PRESENTED

I. WHETHER THE TRIAL COURT WAS CORRECT IN HOLDING THAT DEFENDANT-APPELLEE’S TOWING ORDINANCE WAS INVALID ON THE GROUNDS THAT ITS ENABLING LEGISLATION WAS ULTRA VIRES FOR BEING A LOCAL ACT, IN VIOLATION OF ARTICLE II §24(1)(J) OF THE N.C. CONSTITUTION.

II. WHETHER, IF THE TRIAL COURT IS FOUND TO HAVE BEEN IN ERROR FOR HOLDING THAT N.C. GEN. STAT. § 20-219.2 WAS AN UNCONSTITUTIONAL LOCAL ACT, DEFENDANT-APPELLEE’S TOWING ORDINANCE IS NONETHELESS ULTRA VIRES BECAUSE IT EXCEEDS THE AUTHORITY GRANTED UNDER THAT STATUTE.

- 2 -

III. WHETHER THE EXPANSION OF POWER WHICH THE COURT OF APPEALS FOUND GRANTED TO MUNITIPALITIES IN N.C. GEN. STAT. § 160A-174 TO PROMULGATE THE TOWING ORDINANCE AT ISSUE IS CONSISTENT WITH PLAINTIFF’S DUE PROCESS RIGHTS UNDER ART. I, §19 OF THE N.C. CONSTITUTION AND THE PRIOR DECISIONS OF THIS COURT.

IV. WHETHER THE RESTRICTIVE STANDING DOCTRINE ARTICULATED BY THE COURT OF APPEALS IS CONSISTENT WITH ART. I § 18 OF THE N.C. CONSTITUION AND THE PRIOR DECISIONS OF THIS COURT.

V. WHETHER THE TRIAL COURT WAS CORRECT IN FINDING THAT THE NORTH CAROLINA GENERAL ASSEMBLY CREATED A COMPREHENSIVE REGULATORY SCHEME REGARDING CELL PHONE USE BY MOTORISTS AND THAT THE DEFENDANT-APPELLEE’S CELL PHONE ORDINANCE WAS THUS PREEMPTED BY STATE LAW.

STATEMENT OF THE CASE

On May 2, 2012, Appellant George King (hereinafter “Mr. King”) filed a complaint in this case and obtained a temporary restraining order enjoining enforcement of a towing ordinance and cell phone ordinance passed by the Town of Chapel Hill (hereinafter “the Town,” “Chapel Hill” or “the Town of Chapel

Hill”).

On May 7, 2012, the Superior Court entered a preliminary injunction. On

August 2, 2012, the court entered a permanent injunction striking down Chapel

Hill’s towing ordinance and N.C. Gen. Stat. § 20-219.2 as an unconstitutional local - 3 - act under Section II, Article 24 of the North Carolina Constitution and the Town’s cell phone ban as preempted by state law. (R pp. 82-87.)

On August 28, 2012, Chapel Hill filed a notice of appeal to the North

Carolina Court of Appeals. On June 4, 2013, the Court of Appeals entered a written opinion which reversed the Superior Court’s order. On June 25, 2013, Mr.

King filed a Notice of Appeal and a Petition for Discretionary Review in the alternative. In addition, he filed a Petition for Temporary Stay and Writ of

Supersedeas. On June 25, 2013, the Court granted a temporary stay.

On July 3, 2013, Chapel Hill filed a motion to dismiss the Notice of Appeal and a motion to vacate the temporary stay. On November 7, 2013, the Court denied the motion to vacate the temporary stay.

On November 7, 2013, the Court dismissed Mr. King’s notice of appeal by right, granted Mr. King’s Petition for Discretionary Review, and granted Mr.

King’s Motion for Writ of Supersedeas. Pursuant to N.C. R. App. P. 15(i), Mr.

King’s appellate status is now changed from Appellee to Appellant.

STATEMENT OF GROUNDS FOR REVIEW

This matter was brought on direct appeal from the Superior Court to the

North Carolina Court of Appeals by the Town of Chapel Hill pursuant to N.C.

Gen. Stat. § 7A-27(b). This matter is before the Court on its grant of Mr. King’s - 4 -

Petition for Discretionary Review pursuant to N.C. R. App. P. 15 and N.C. Gen.

Stat. § 7A-31.

STATEMENT OF FACTS

Mr. King is the owner of a small towing company in Chapel Hill which manages parking lots for his clients, who are businesses in Chapel Hill. He removes the vehicles of individuals who park illegally on his clients’ property and then walk off to patronize other businesses or to pursue personal errands. Mr.

King does business as George’s Towing and Recovery, and has developed an extensive network of video monitoring to protect his company and his clients. (R. pp. 2-4, 19-22.)

Early in 2012, Mr. King found himself whipsawed by two new ordinances passed by the Chapel Hill Town Council which threatened his ability to remain in business. (R. pp. 19-22.) The first ordinance, the towing ordinance, placed a series of draconian restricts and requirements on towing companies. These included a fee limit set lower than Mr. King’s actual costs, a requirement that his businesses post huge eight foot high signs on two out of three of their parking spots, and a requirement that his operators call the police immediately when they tow any vehicles. (R. pp. 60-62.) At the same time Chapel Hill mandated this additional phone usage, it also passed the second ordinance prohibiting any use of cell phones while driving in Chapel Hill. - 5 -

The cell phone ban was enacted on March 26, 2012. (R pp. 72-74.) Prior to enacting it, the Town of Chapel Hill requested and received an advisory letter by the North Carolina Attorney General’s Office concerning the legality of the ordinance. (R pp. 15-17.) Despite the warning of the Attorney General's Office that the cell phone regulation was preempted by state law, (R pp. 15-17), the Town of Chapel Hill enacted the ordinance anyway. Apparently in an effort to avoid possible challenges to the cell phone ban, the Town of Chapel Hill greatly restricted its enforcement:

No citation for a violation of this section shall be issued unless the officer issuing such citation has cause to stop or arrest the driver of such motor vehicle for the violation of some other provision of State law or local ordinance relating to the operation, ownership, or maintenance of a motor vehicle or any criminal statute.

(R p. 74.)

Chapel Hill’s amended towing ordinance was passed on February 13. (R pp.

59-64.) As noted above, it includes regulations that are so stringent as to make it extremely difficult for towing operators to conduct business in Chapel Hill. (R pp.

59-64.) The ordinance requires, among other items, excessive signage, e.g., huge eight feet tall signs for one out of every three spaces, (later amended during the pendency of this action to two out of every five), excessive notice of video surveillance (originally to be one per three spaces, later amended to posted notice at entrances), excessive notice of towing to the town (regulations which in effect - 6 - allow competitors to monitor the business of a towing company), setting the fees that can be charged at a rate lower than the actual costs of towing, and requiring the acceptance of credit cards. (R pp. 59-64.)

The Chapel Hill ordinance requires signs posted at each access or curb cut allowing vehicular access to the property, within five (5) feet of the street right-of- way line. If there are no curb or access barriers, the ordinance requires that signs shall be posted not less than one (1) sign each fifty (50) feet of the frontage to the public street. Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-

301(a)(1). The maximum size is four (4) square feet. Signs are also required to be placed in an interval of one at every third parking space within the lot. Id. The notice requirements for the signs are found in Section 11-301(a)(2) as follows:

a. In not less than one-and one-half (1½) inch high letters on a contrasting background, the words "tow-away" or "tow-away zone" or "towing enforced", or a similar phrase.

b. In not less than one (1) inch high letters on a contrasting background, a statement indicating that parking by unauthorized vehicles is prohibited by the use of a phrase such as "private property", "leased parking", "no parking", "parking for customers only", "parking for residents only", or a similar phrase. If parking by unauthorized vehicles is not prohibited on a twenty-four (24) hour continuous basis, the days of the week and hours of the day during which unauthorized parking is prohibited shall be posted.

c. If the property owner adopts a policy where the vehicles are subject to immediate towing when the vehicle operator steps off the property, the signage shall also depict the phrase “If you walk-off this property, you are subject to being towed. This includes patrons who are - 7 -

frequenting businesses on this property” in (1) inch high letters on a contrasting background.

d. If parking on the private property is monitored or enforced through the use video surveillance, an additional sign not less than twenty-four (24) inches by twenty four (24) inches in size shall be placed in proximity to any sign required in Sec. 11-301 (a)(1). This sign, in not less than one-and one-half (1½) inch high letters on a contrasting background shall clearly display the words "towing enforced through the use of video monitoring” or “towing enforced through video surveillance.”

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(2)(b).

Furthermore:

In not less than one-half (½) inch high letters on a contrasting background, the telephone number at which a person available to release the vehicle that has been towed, removed, or immobilized may be contacted at any time. Calls to the telephone number must be answered by a person and a person with the authority and ability to release the vehicle must respond to the location of the vehicle within thirty (30) minutes of a call.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(3). Finally:

The sign structure displaying the required notices shall be permanently installed with the bottom of the sign not less than six (6) feet above ground level and not more than eight (8) feet above ground level. Pedestrian safety should be taken into consideration when locating freestanding signs.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(b).

The Chapel Hill ordinance sets a fee schedule of $125.00, and prohibits any additional fees:

Any towing or storage firm which tows or removes a vehicle pursuant to this article shall not charge the owner or operator of the vehicle in - 8 -

excess of the fees established in the fee schedule adopted annually by the Town Council. No storage fees shall be charged for the first twenty-four (24) hour time period from the time the vehicle is initially removed from the private property. The fees referred to herein shall be all inclusive; no additional fees may be charged for the use of particular equipment or services.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-304(a).

Not only does the ordinance regulate what can be charged, it also mandates the manner in which tow operators must accept payment.

The fees established by the Town Council shall be all inclusive. The fees referred to in this section shall be payable by cash, debit card and at least two (2) major national credit cards at no extra cost. Failure to accept credit or debit cards for payment is a violation of this section and is punishable as a misdemeanor. No additional fees may be charged for using dollies, trailers, lifts, slim jims or any other equipment or service.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-304(d).

In addition, there are a number of provisions which mandate extensive reporting to the Police Department.

When towing a vehicle pursuant to this article, the tow truck operator who is removing the vehicle shall report by telephone to the Chapel Hill Police Department, a license tag number, description of the vehicle, the location that the vehicle is being towed from, and its intended storage location. This report to the police department shall be made before the tow truck towing the vehicle leaves the private property from which the vehicle is towed.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-305.

“Tow operators are required to provide the location of their tow storage lots to the Chapel Hill Police Department on an annual basis.” Chapel Hill Code of - 9 -

Ordinances, Chapter 11, Article XIX § 11-307(a). "The tow storage lot must be located within 15 miles of the point of tow." Chapel Hill Code of Ordinances,

Chapter 11, Article XIX § 11-307(b).

Tow storage lots must be clearly signed. The lot shall be secured and lighted in such a manner as to keep the vehicle safe from break-ins or damage while in storage. A fenced storage yard with average surface level lighting sufficient for transacting nighttime business shall be deemed complaint with this section. Tow storage lots will be inspected, by the Police Department, on an annual basis.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(c).

Finally, Chapel Hill’s towing ordinance provides for enforcement by injunctive relief, presumably by any person, as well as criminal and civil penalties.

Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(b).1

On May 2, 2012, Mr. King filed an action for declaratory judgment seeking to strike down both ordinances. (R. pp. 3-22.) Mr. King argued that the enabling statute cited for the towing ordinance, N.C. Gen. Stat. § 20-219.2 was an unconstitutional local law which regulated commerce, in violation of Article II,

Section 24 (l)(j) of the North Carolina constitution. He also argued that the

General Assembly had preempted Chapel Hill’s right to pass a ban on the use of cell phones while driving. (R. pp. 3-22.)

1 Although the Court of Appeals below stated that this ordinance does not provide a private cause of action for injunctive relief, nothing in the language of the statute limits the potential plaintiff in an action for injunctive relief to the Town of Chapel Hill. Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(b). - 10 -

After the filing of this action, Chapel Hill enacted further amendments to the ordinances. (R pp. 66-79.) In view of the timing involved and the changes made, the new amendments appear to have been adopted for the purpose of bolstering

Chapel Hill’s position in this litigation. The new towing ordinance contains additional post hoc justifications for its enactment. Chapel Hill also amended some of the excessive signage requirements, although not all. (R pp. 66-79.)

Nevertheless, the ordinances still heavily regulate all aspects of the business of towing and the usage of cell phones by towing companies, as well as other citizens.

(R pp. 66-79.)

In a hearing on August 2, 2012, the Town of Chapel Hill, while conceding that N.C. Gen. Stat. § 20-219.2 is a local law, maintained that it had authority to enact both ordinances and that Mr. King did not have standing to challenge the cell phone ban. The Superior Court rejected the Town’s arguments and voided both ordinances. (R pp. 82-87.)

The Town of Chapel Hill appealed. On March 11, 2013, the appeal was argued before the Court of Appeals. On June 4, 2013, the Court of Appeals filed its opinion in COA No. 12-1262. King v. Town of Chapel Hill, ___ N.C. App.

___, 743 S.E.2d 666 (2013). The Court of Appeals reversed the decision of the

Superior Court, but on alternative grounds. Id. - 11 -

First, the Court of Appeals held that, whether or not N.C. Gen. Stat. 20-

219.2 was unconstitutional, the general police powers granted to municipalities in

N.C. Gen. Stat. § 160A-174 gave Chapel Hill authority to enact its towing ordinance. Id. at ___, 743 S.E.2d at 673. In addition, the Court of Appeals ruled that George King did not have standing to contest the cell phone ordinance, even though the Declaratory Judgment Act allows someone who potentially subject to prosecution to contest a criminal sanction. Id. at ___, 743 S.E.2d at 676. The Court of Appeals did not explain why it assumed standing for Mr. King to challenge the towing ordinance but ruled he did not have standing to challenge the cell phone ordinance. Id. at ___, 743 S.E.2d at 676.

ARGUMENT

This case involves the extent and limits of the authority of North Carolina cities and towns to regulate and criminalize towing and cell phone use in moving vehicles. When a municipal ordinance is challenged as being beyond the government’s authority to enact on statutory or constitutional grounds, the question is one of law. Clark’s Greenvillle, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5

(1966). The standard of review for questions of law is de novo. Hodges v.

Mecklenburg County Zoning Board of Adjustment, 148 N.C. App. 52, 557 S.E.2d

631 (2001). The issues in this case all being questions of law, the Court’s standard of review is de novo. - 12 -

I. THE TRIAL COURT CORRECTLY HELD CHAPEL HILL’S TOWING ORDINANCE TO BE INVALID BECAUSE ITS ENABLING LEGISLATION WAS ULTRA VIRES AND IN VIOLATION OF ARTICLE II §24(1)(J) OF THE N.C. CONSTITUTION.

“Neither counties nor municipalities have any inherent legislative powers.”

High Point Surplus Company, Inc. v. Pleasants, 264 N.C. 650, 655, 142 S.E.2d

697, 701 (1965) (internal citations omitted). Municipal corporations are only creatures of the General Assembly, with no inherent powers, and can exercise only such powers as are actually conferred by the General Assembly See id., at 655, 142

S.E.2d at 701 (internal citations omitted). Thus, in order to act, municipalities must have what is commonly referred to as “enabling legislation.” See, e.g.,

Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 632, 630

S.E.2d 200 (2006).

In this case, Chapel Hill has argued below that its towing ordinance is enabled by three separate statutory provisions. None of them, however, authorize the Chapel Hill towing ordinance as it currently exists.

A. N.C. Gen. Stat. § 20-219.2 Is Unconstitutional and Thus Cannot Enable Chapel Hill’s Towing Ordinance.

Initially, Chapel Hill relied on N.C. Gen. Stat. § 20-219.2 as an enabling statute for its towing ordinance. This statute, however sets out a number of rules for towing companies in thirteen counties and their municipal corporations, but - 13 - does not purport anywhere to affirmatively grant these counties or any other North

Carolina political subdivisions the power to enact their own towing ordinances.

Article II §24 (1)(j) of the North Carolina Constitution states, “The General

Assembly shall not enact any local, private, or special act or resolution:

[r]egulating labor, trade, mining or manufacturing[.]” N.C. Const. Art. II §

24(1)(j) (2012) (emphasis added). Subsection (3) states that “[a]ny local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.” N.C. Const. Art. II § 24(3) (2012). The North Carolina Supreme

Court described local acts as follows:

[b]y force of an inherent limitation, it [(a local act)] arbitrarily separates some places from others upon which, but for such limitation, it would operate, where it embraces less than the entire class of places to which such legislation would be necessary or appropriate having regard to the purpose for which the legislation was designed, and where the classification does not rest on circumstances distinguishing the places included from those excluded.

High Point at 656-57, 142 S.E.2d at 702 (quoting McIntyre v. Clarkson, 254 N.C.

510, 518, 119 S.E.2d 888, 894 (1961)).

A general law “applies to and operates uniformly on all members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law . . . [c]lassification must not be discriminatory, arbitrary or capricious.” Id. The test for identifying a general law is “if ‘any rational basis reasonably related to the objective of the legislation can be identified which - 14 - justifies the separation of units of local government into included and excluded categories.”’ Adams v. N.C. Dep’t of Natural & Econ. Res., 295 N.C. 683, 690,

249 S.E.2d 402, 407 (1978) (internal citations omitted).

In this case, Mr. King operates his business for a gain or profit, and it is, accordingly, a trade as defined by the Court in High Point, 264 N.C. at 655-56, 142

S.E.2d at 702. The Town regulates towing throughout Chapel Hill by force of its current towing ordinance, Chapel Hill Code of Ordinances, Chapter 11, Article

XIX §§ 11-301-307 (hereinafter may be referred to as “towing ordinance”). At the trial level, the Town claimed to derive its statutory authority to enact the aforementioned ordinance from N.C. Gen. Stat. §20-219.2, “Removal of

Unauthorized Vehicles From Private Lots” (hereinafter may be referred to as

“towing statute”). (See R. pp. 45, 49.)

On its face, N.C. Gen. Stat. § 20-219.2 applies only to Craven, Cumberland,

Dare, Forsyth, Gaston, Guilford, Mecklenburg, New Hanover, Orange, Richmond,

Robeson, Wake, and Wilson counties (and to the municipalities of those counties), as well as to the cities of Durham, Jacksonville, Charlotte, and Fayetteville. N.C.

Gen .Stat. § 20-219.2(c). The statute thus excepts eighty-seven (87) counties from application. In addition, the towing statute does not set forth any specific reason, or “rational basis,” for limiting its application to the enumerated counties and cities. See N.C. Gen. Stat. § 20-219.2. - 15 -

Because N.C. Gen. Stat. §20-219.2 is a local act that regulates trade in violation of N.C. Const. art. II §24(1)(j), the trial court correctly ruled it to be void.

As a result, the Town’s ordinance is invalid because its purported enabling legislation is unconstitutional, void, and of no force or effect. The Superior Court thus properly held that Chapel Hill is unable to regulate towing under N.C. Gen.

Stat. § 20-219.2.2

The Court of Appeals did not address the Superior Court’s holding that N.C.

Gen. Stat. §20-219.2 is void. Indeed, throughout this litigation, no serious legal argument has been raised which could avoid this inevitable conclusion. Further, even if N.C. Gen. Stat. §20-219.2 were not void, it nowhere affirmatively grants authority to the Town of Chapel Hill to pass additional and more draconian regulations governing towing.

B. The Town of Chapel Hill’s Towing Statute Is Not Enabled by N.C. Gen. Stat. § 160A-174(a).

The Court of Appeals in this case did not address the Superior Court’s holding that N.C. Gen. Stat. § 20-219.2 is void. Instead, it sidestepped that issue by ruling that Chapel Hill’s towing statute is alternatively enabled by N.C. Gen.

Stat. § 160A-174, the generic police power statute.

2 Although not discussed specifically below, the same analysis would also apply to Session Law 2001-46, which specifically authorized the City of Greenville and Town of Chapel Hill to require pretowing notices be displayed before a motor vehicle may be towed from a private lot. A copy of Session Law 2001-46 was attached as Exhibit 4 of the Answer and is in the record. (R p. 55.) - 16 -

The Court of Appeals’ erroneous holding represents a dangerous and extreme departure from several of the Court’s longstanding precedents. Further, the Court of Appeals opinion fabricates a novel standard which violates the Law of the Land Clause of the North Carolina Constitution.3 The Court should overturn this novel and unconstitutional decision, affirm the Superior Court, and reaffirm its own existing precedent.

1. The Court of Appeals Improperly Considered a Generic Statute When A Specific Statute Concerning the Subject Matter Existed.

As recently as last year, the Court reiterated the long-standing principle that refuses to consider a general statute when a specific statute addresses the same issue.

This Court adheres to the long-standing principle that when two statutes arguably address the same issue, one in specific terms and the other generally, the specific statute controls. State ex rel. Utils. Comm'n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 193 (1977) (citing, inter alia, State v. Baldwin, 205 N.C. 174, 170 S.E. 645 (1933)). And when that specific statute is clear and unambiguous, we are not permitted to engage in statutory construction in any form. This Court may not construe the statute in pari materia with any other statutes, including those that treat the same issue generally.

High Rock Lake Partners, LLC v. N.C. DOT, ___ N.C. ___, 735 S.E.2d 300, 305

(2012). Here, the General Assembly addressed the specific issue of towing in N.C.

Gen. Stat. § 20-219.2, albeit in an unconstitutional matter. N.C. Gen. Stat. § 20-

3 The unconstitutionality of the Court of Appeals’ analysis is addressed in Argument III, infra. - 17 -

219.2 was also cited as an authorization statute along with N.C. Gen. Stat. § 160A-

174 in Chapel Hill’s post litigation amendment to its challenged towing ordinance.

(R p. 66.)

In addition, in 2001 the General Assembly passed a local enabling law permitting the town of Chapel Hill and the city of Greenville to require notices be displayed before automobiles may be towed from private lots. (R p. 55.)4

Specifically, that local law allows Chapel Hill to set the size and nature of the required notices and provide penalties for violation of an ordinance created under the subsection. (R p. 55.) Thus, the General Assembly recognized that a specific authorization was required to allow Chapel Hill’s signage regulations.

In view of these more specific statutes, the Court of Appeals erred in even considering whether Chapel Hill’s towing ordinance was authorized by the more general grant of authority after the General Assembly passed a grant specific to towing. See High Rock Lake Partners, LLC v. N.C. DOT, ___ N.C. ___, 735

S.E.2d 300, 305 (2012).

The fact that N.C. Gen Stat. § 20-219.2(d) contains an anti-preemption provision does not cure this problem. That provision does not mention any specific statute, let alone Section 160A-174(a). It would be improper to interpret that provision to allow municipalities carte blanche to regulate towing in any way

4 As noted in the previous section, this local law suffers from the same constitutional infirmity suffered by N.C. Gen. Stat. § 20-219.2, in that it is a local law affecting trade. - 18 - possible. Rather, it is better to interpret that provision to clarify that this statute was not meant to disturb any other general law. Further, no preemption provision is included in Session Law 2001-46, which presumes that its specific grant of authority was required in order for Chapel Hill to enact signage requirements before towing from private lots.

2. Text and Historical Background of N.C. Gen. Stat. § 160A-174(a).

N.C. Gen. Stat. § 160A-174(a) is entitled “General ordinance-making power.” It provides that “[a] city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.” N.C. Gen. Stat. § 160A-174(a).

In general, the police power vests in the State, and the General Assembly may enact laws in the exercise thereof, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society. See City of Raleigh v. Norfolk S. Ry. Co., 275 N.C. 454, 460, 168 S.E.2d 389, 393-94

(1969) (citing State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949)). Further, the

General Assembly may delegate to a municipality, as an agency of the State, the authority to exercise some police power. State v. Scoggin, 236 N.C. 1, 72 S.E.2d

97 (1952). Police powers delegated to municipalities, as a practical matter, are to be carried into effect and discharged through provisions of ordinances or - 19 - resolutions. City of Raleigh v. Norfolk S. Ry. Co., 275 N.C. 454, 168 S.E.2d 389

(1969). A municipality may not exercise any power not granted to it by the

General Assembly and possesses no inherent authority. Porsh Builders, Inc. v.

City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981); Greene v City of

Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975).

Prior to the enactment of N.C. Gen. Stat. § 160-174, the General Assembly had passed similar enabling statutes granting police powers to counties and municipalities in 1868 and 1876. David Owens, Local Government Authority to

Implement Smart Growth Programs: Dillon’s Rule, Legislative Reform, and the

Current State of Affairs in North Carolina, 35 WAKE FOREST L. REV. 671, 681

(2000). In addition, a generic grant of police powers was usually included in the charter legislation for each municipality. Much of the case law citing N.C. Gen.

Stat. § 160-174 statute and its predecessors concern abating nuisances, see, e.g.,

State v. Hord, 122 N.C. 1092, 29 S.E. 952 (1898) (forbidding the keeping of hog pens); State v. Maynard, 195 N.C. App. 757, 673 S.E.2d 877 (2009) (ordinance limiting number of dogs); Stillings v. City of Winston-Salem, 63 N.C. App. 618,

306 S.E. 2d 489 (1983) (regarding waste disposal)), or concern so called “Sunday

Ordinances,” see State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972)

(ordinance unconstitutionally singled out and banned the operation of billiard halls); State v Smith, 265 N.C. 173, 143 S.E.2d 293 (1965) (Sunday ordinance an - 20 - unconstitutional use of police power for exceeding reasonable means to accomplish reasonable goal), or concern obvious health or safety issues, see Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968) (regulation of “massage parlors”); Standly v. Town of Woodfin, 168 N.C. App. 134, 650 S.E.2d 618 (2007)

(prohibition of sex offenders entering public parks); Moore v. Town of Plymouth,

249 N.C. 423, 106 S.E.2d 695 (1959) (municipality’s authority to kill mosquitoes);

Rosenbaum v. City of New Bern, 118 N.C. 83, 24 S.E. 1 (1896) (regulation of disinfection of secondhand clothing)).

To the best knowledge of the undersigned, there is no previous North

Carolina case law upholding or even discussing the regulation of towing pursuant to N.C. Gen. Stat. § 160A-174(a). Thus, the Court of Appeals’ invocation of this statute below is a novel development.

3. The Court of Appeals Has Departed from the Court’s Previous Holdings Concerning Interpretation of Enabling Statutes.

In its opinion below, the Court of Appeals discusses the history of this

Court’s construction of the state’s grant of legislative authority to municipalities.

See King v. Town of Chapel Hill, ___ N.C. App. ___, 743 S.E.2d 666, 670-72

(2013). Specifically, the Court of Appeals notes that in 1870’s the Supreme Court adopted the approach known as “Dillon’s Rule.” Id. at ___, 743 S.E.2d at 670

(citing Lanvale Props., LLC v. Cnty. of Cabarrus, N.C., 366 N.C. 142, 731 S.E.2d

800, 808 (2012). Dillon’s Rule is stated as follows: - 21 -

It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation.

King, ___ N.C. App. at ___, 743 S.E.2d at 710 (quoting Smith v. City of Newbern,

70 N.C. 14, 18, 1874 N.C. LEXIS 156 (1874).

The Court of Appeals then claims that the General Assembly implicitly overruled Dillon’s Rule by enacting Chapter 160A in 1971. King, ___ N.C. App. at ___, 743 S.E.2d at 710. Specifically, N.C. Gen. Stat. § 160A-4 states:

It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the powers, duties, privileges, and immunities conferred upon them by the law. To this end, the provisions of this Chapter and of city charters shall be broadly construed to include any additional and supplemental powers that are reasonably necessary or expedient to carry them into execution and effect. Provided that the exercise of such additional or supplemental powers shall not be contrary to State or federal law or to the public policy of this State.

N.C. Gen. Stat. § 160A-4.

The Court of Appeals then tries to distinguish several of the key precedents of this Court concerning Section 160A-4. King, ___ N.C. App. at ___, 732 S.E.2d at 671-72 (discussing Homebuilders Ass’n v. Charlotte, Inc. v. City of Charlotte,

336 N.C. 37, 43, 442 S.E.2d 45 (1994); Bowers v. City of High Point, 339 N.C.

413, 451 S.E.2d 284 (1994); Smith Chapel Baptist Church v. City of Durham, 350

N.C. 805, 517 S.E.2d 874 (1999); Lanvale Props., LLC v. Cnty. of Cabarrus, N.C., - 22 -

366 N.C. 142, 731 S.E.2d 800, 808 (2012)). In order to distinguish the last three of this Court’s cases, the Court of Appeals used its own holding in Bellsouth Inc. v.

City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721 (2005). King, ___ N.C.

App. at ___, 732 S.E.2d at 671-72. The Court of Appeals analysis, however, disregards clear language from this Court which had already rejected such an application of N.C. Gen. Stat. § 160A-4.

In Bowers, Smith Chapel Baptist Church, and Lanvale, the Court held that in order to determine whether a municipality complied with an enabling statute, the

Court first looks at the plain language of the statute. Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 810, 517 S.E.2d 874, 878 (1999) (citing State v.

Dellinger, 343 N.C. 93, 95, 468 S.E.2d 218, 220 (1996)); see also Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994); Lanvale Props., LLC v. Cnty. of Cabarrus, N.C., 366 N.C. 142, 731 S.E.2d 800, 808 (2012)). The title of an act should also be considered, in addition to the plain language of the statute, when determining the intent of the legislature. Smith Chapel Baptist Church at 812, 517

S.E.2d at 879 (citing State ex rel. Cobey v. Simpson, 333 N.C. 81, 90, 423 S.E.2d

759, 764 (1992)). “When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.” Id. (quoting Lemons v. Old Hickory Council, BSA, 322 N.C.

271, 276, 367 S.E.2d 655, 658 (1988)). - 23 -

In this case, however, the Court of Appeals rejected the Court’s plain language requirement for statutory construction, citing the reasoning of its own precedent, Bellsouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75,

359 N.C. 629, 615 S.E.2d 660 (2005). King, ___ N.C. App. at ___, 743 S.E.2d at

673. The Court of Appeals justified this approach by claiming that the text of N.C.

Gen. Stat. § 160A-174(a) was “ambiguous.” Id. Thus, the Court of Appeals reasoned that it should use a “broad construction” of N.C. Gen. Stat. § 160A-

174(a), thereby allowing Chapel Hill’s towing ordinance.

In labeling N.C. Gen. Stat. § 160A-174(a) as “ambiguous”, the Court of

Appeals adopted a “broad construction” and held it was not bound by the Court’s holdings in Lanvale, Bowers, Smith Chapel Baptist Church and other cases to restrict itself to the plain and definite meaning of the statute. King, ___ N.C. App. at ___, 743 S.E.2d at 673. The Court of Appeals, however, nowhere identifies the ambiguity, i.e. the potential double meaning it claims exists in N.C. Gen. Stat. §

160A-174(a). See id. Further, the Court of Appeal abuses the concept of “broad construction” to mean that any regulation, no matter how tenuously related to the granted power, must be upheld.

Remarkably, the Court of Appeals adopted this approach less than one year after it was specifically rejected by the Court:

The dissent also posits that the "statutory language [in sections 153A- 340(a) and 153A-341] does not plainly define the limits of the powers - 24 -

delegated, and must be read in light of the General Assembly's intent for the entire Chapter as conveyed in sections 153A-4 and section 153-124." As a result, the dissent concludes that the plain language of sections 153A-340(a) and 153A-341 is ambiguous. This is a curious conclusion. The dissent's position appears to be premised upon an apparent lack of specificity in the statutory language. In the absence of this more precise language—it is unclear from the dissent's opinion how much more specific the language must be—the dissent argues for the broadest construction of county power possible, relying upon sections 153A-4 and 153A-124. . .

We recognize that counties enjoy flexibility in enacting ordinances, but the dissent’s interpretation of sections 153A-4 and 153A-124 - carried to its logical conclusion—would give counties virtual carte blanche to enact an unlimited range of ordinances affecting the use of real property no matter how tenuous the connection between the ordinance and our zoning statutes. We are not persuaded that the General Assembly intended to give counties such expansive legislative power.

Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 155, 163, 731 S.E.2d

800, 810, 815. See also Smith Baptist Church, 350 N.C. at 817-18, 517 S.E.2d at

882 (upholding trial court finding that while the rate scheme enacted by the city was rationally related to Durham’s statutory authority, the amount of stormwater charges and the use of funds collected were not).

The Court of Appeals below blatantly disregarded the Court’s rejection of carte blanche authority based upon any tenuous connection to a legitimately delegated power. In its holding, it did away with any practical limitations on the police power of municipalities, even limitations recognized by the Court as constitutionally mandated, as shown infra. Merely the vaguest of relationship - 25 - asserted to any of the powers granted in the police power statute appears enough to justify any regulation, including regulation that puts legitimate companies out of business and radically curtails the private use of property. See, e.g., King, ___

N.C. App. at ___, 743 S.E.2d at 673-75. (“we broadly construe section 174(a) of

Chapter 160A . . . and hold that the Towing Ordinance covers a proper subject for regulation under the Town’s police power.”) The Court should once again reject the carte blanche approach and restore the balance contained in its previous case law.

4. N.C. Gen. Stat. §160-174(a) Does Not Authorize Municipal Regulation of Towing In General.

Initially, Mr. King respectfully contends that N.C. Gen. Stat. §160-174(a) was not intended by the General Assembly to regulate towing in general. In its attempt to distinguish this case from the Court’s precedents in Lanvale, Smith

Chapel Baptist Church, et al, the Court of Appeals did not address the history and case law discussing the general grant of police power in N.C. Gen. Stat. § 160A-

174(a) and related statutes. These statutes give municipalities the right to make ordinances affecting the “health, safety, or welfare of its citizens and the peace and dignity of the city.” N.C. Gen. Stat. § 160A-174.

Most of the original municipal charters and the predecessor statutes of N.C.

Gen. Stat. § 160A-174 were drafted and developed prior to the invention of the automobile. David Owens, Local Government Authority to Implement Smart - 26 -

Growth Programs: Dillon’s Rule, Legislative Reform, and the Current State of

Affairs in North Carolina, 35 WAKE FOREST L. REV. 671, 681 (2000). With all due respect, it could hardly have been the intention of the General Assembly to authorize automobile towing before it existed. Rather, these statutes were intended to provide the political subdivisions with the police power to pass ordinances exercising the power historically understood to be in the province of the local governments.

Further, the adoption of N.C. Gen. Stat. § 20-219.2, despite its constitutional infirmity, shows that the General Assembly recognized the limitations of previous statutory grants with respect to the issue of towing. The enactment of that unconstitutional statute is evidence that the General Assembly did not believe that the political subdivisions had the ability to deal with towing on a comprehensive basis. Similarly, as stated above, the enactment of Session Law 2001-146 shows that the General Assembly did not believe that Chapel Hill had authority from the general police power grant in Section 160A-174 to pass laws respecting towing.

Finally, towing on private lots is done and allowed by state law for the purpose of protecting private property. It is not detrimental to the health or safety of the public like massage parlors, mosquitoes, sex offenders around children, or secondhand clothing that has yet to be disinfected. It is not a nuisance that needs - 27 - to be abated either; in fact, towing abates the nuisance of individuals who trespass on the property of others with complete notice of such trespass.

5. The Specific Provisions of the Chapel Hill Towing Ordinance Go Beyond Any Rational Relation to the Police Power.

Even if some type of regulation of towing could be justified by N.C. Gen.

Stat. § 160A-174, the draconian provisions of Chapel Hill’s towing ordinance cannot be justified under that statute’s grant of police power authority. Chapel

Hill’s towing ordinance is an egregious attempt to regulate all aspects of the towing business within the town, as evidenced by its provisions regarding multiple signs, required forms of payment, required police notification and inspections, and especially the set fees. (R. pp. 60-63.) Mr. King has no flexibility in how he operates his business as a result of this ordinance. The new regulations are so extreme that they are a thinly veiled attempt to prohibit the practice of towing to protect private parking spaces, a practice made necessary in Chapel Hill by its decades long policy to restrict parking and attack the use of private automobiles.

(See R. pp. 19-23.)

In sum, Chapel Hill’s towing ordinance, in setting fees, enacting bizarre and excessive signage and reporting requirements, and in mandating the use of credit cards, goes far beyond regulating towing for the “health, safety, or welfare of its citizens and the peace and dignity of the city.” N.C. Gen. Stat. § 160A-174. - 28 -

Chapel Hill has claimed that “the public and members of the towing industry” have been “exposed to harm,” and that its Council desired to reduce “the harmful and adverse effects” of towing. However, The Town of Chapel Hill fails to allege what those “harms” or “adverse effects” actually are; and instead presumes that they exist without presenting evidence to that effect. Chapel Hill

COA Br. at 12.

Chapel Hill has also argued that the bizarre and unsightly signage requirement in its towing ordinance is justified because it “can prevent the unlawful parking of automobiles on private lots.” Chapel Hill COA Br. at 12-13.

This prediction assumes that those who illegally park must wade through a forest of signs before they will actually notice that they are on someone else’s property, and that a four square foot sign at the entrance (and likely exit) is not nearly enough. One can only imagine a proprietor of a downtown Chapel Hill eatery looking out the window at the veritable gulag fence of eight feet tall signs around the entire establishment, as required by the ordinance. Surely, that extreme is not necessary to give adequate notice of potential towing.

Finally, Chapel Hill has argued that with its towing ordinance in place citizens will finally be able to find out how to locate their towed vehicle. Chapel

Hill COA Br. at 12-13. It is also against common logic to think that trespassers - 29 - will need multiple redundant signage in order to find the information they need, rather than one sign per parking lot.

Additionally, Chapel Hill’s requirement of credit card payment for a towing lien goes beyond the scope of protecting the health, welfare, and safety of the public. The Town has argued that this is justified by concerns of convenience for the illegal parker in locating an automatic teller machine, which allegedly becomes particularly troublesome at night; despite Chapel Hill being a very small town that is well lit. Although in fact there are numerous ATMs on route to the impound area, nowhere in the history of this Court’s case law has the police power ever been extended to provide for the convenience of trespassers.

Of all the ordinance’s departures from any lawful exercise of police power, however, two stand above and beyond the others. These require their own separate treatment.

6. The Provision Limiting Fees in Chapel Hill’s Towing Ordinance Is Not Related to the Health Safety, or Welfare of its Citizens and the Peace and Dignity of the City or Consistent with the Laws of North Carolina.

On its face, limiting fees that can be charged for towing is not related to the health, safety or welfare of Chapel Hill’s residents, and thus has no basis in any category found in the police power grant. Moreover, N.C. Gen. Stat. § 160A-174 states that ordinances must be consistent with the laws of North Carolina and the

United States. Under state law, towing companies are allowed to charge a - 30 - reasonable fee for the lien they hold against an illegally parked vehicle. See N.C.

Gen. Stat. § 44A-2. Chapel Hill’s ordinance, however, limits the fees charged to an amount that makes it economically unviable for towing companies to operate.

(R. pp. 23-28.) Nowhere in the general laws of this State does the General

Assembly give municipalities the power to decide what is a reasonable fee with regards to towing. The General Assembly did decide to do just that with regard to taxicabs in N.C. Gen. Stat. § 160A-304(a), but that power was not delegated to municipalities with regard to towing.

Another way an ordinance can be inconsistent with the laws of North

Carolina and the United States are if “[t]he ordinance infringes a liberty guaranteed to the people by the State or federal Constitution.” N.C. Gen. Stat. § 160A-

174(b)(1). The right to contract is a property right which falls under the protection of the North Carolina and United States Constitutions. Midulla v. Howard A. Cain

Co., Inc., 133 N.C. App. 306, 308, 515 S.E.2d 244, 246 (1999) (internal citations omitted). “[W]here an individual's freedom of contract is infringed by a statute, it must be declared invalid unless the law's benefit to the public outweighs the infringement.” State ex rel. Utilities Comm'n v. Edmisten, 294 N.C. 598, 611, 242

S.E.2d 862, 870 (1978) (internal citations omitted).

Thus, even if N.C. Gen. Stat. § 160A-174, by itself, would be enough to constitute enabling legislation, The Town of Chapel Hill’s towing ordinance is an - 31 - abrogation of the right to contract due to its fee setting provision. This provision’s

“benefit” to the public is not even apparent because the members of the “public” that allegedly benefit from this provision consist only of trespassers who were on notice of their unlawful parking and who stole the particular property owner’s rights to that parking space. Because Chapel Hill’s towing ordinance infringes on towing companies’ and property owners’ right to contract, with no discernible benefit to the public, it must be deemed invalid on that basis.

7. Chapel Hill’s Towing Ordinance Purports to Create a Private Cause of Action.

Finally, and most blatantly, Chapel Hill’s ordinance purports to create a private cause of action. This is specifically forbidden by the Court’s holding in

Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003).

In Williams, the Court held that an attempt to create a private cause of action

"substantially exceeds the leeway permitted" by Section 160A-174’s parallel county statute, N.C.G.S. § 153A-121(a). Williams, 357 N.C. at 192, 581 S.E.2d at

430. In Williams, Orange County had persuaded the General Assembly to pass a law allowing it to enact a “comprehensive civil rights ordinance.” The Court described it as follows:

In its current form, the Ordinance is an antidiscrimination law applicable only in Orange County and administered by counterclaim defendants. The employment provisions of the Ordinance provide in pertinent part:

(a) It is unlawful for an employer: - 32 -

(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to that individual's compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, disability, familial status, or veteran status.

Ordinance, art. IV, sec. 4.1(a)(1), at 9 (effective 1 January 1996). The Ordinance is enforceable by a private cause of action that permits those affected to recover injunctive relief, back pay, and compensatory and punitive damages up to $ 300,000. Ordinance, art. VIII, sec. 8.3.2, at 50-53; art. X, at 54-55. Different sections of the Ordinance prohibit discrimination in employment, housing, and public accommodations, as well as the infliction of bodily injury or property destruction on account of the factors listed above. . .

Williams, 357 N.C. at 175, 581 S.E.2d at 420.

After declaring the local law enabling this ordinance unconstitutional under

Article II §24 (1)(j), the Williams Court summarily rejected an attempt to justify the discrimination ordinance under the generic police power grant, an argument remarkably similar to Chapel Hill’s in this case. See id. The Court noted that an attempt to create a private cause of action "substantially exceeds the leeway permitted" by the parallel county statute, N.C.G.S. § 153A-121(a). Williams, 357

N.C. at 192, 581 S.E.2d at 430.5

Here, Chapel Hill’s owing ordinance states that “(t)his article may also be enforced by an appropriate equitable action.” (R p. 63.) The Court of Appeals,

5 In addition to the Town’s arguments on this point, the League of Municipalities filed an amicus curiae brief with the Court of Appeals raising arguments similar to those raised by the North Carolina Association of County Commissioners in the amicus curiae brief filed in Williams. See Amicus COA Br. - 33 - however, asserted that this ordinance does not provide a private cause of action for injunctive relief. King, ___ N.C. App. at ___, 743 S.E.2d at 666.

Notwithstanding the Court of Appeals’ denial, there is nothing in the language of the towing ordinance which limits the potential plaintiff in an action for injunctive relief to being the Town of Chapel Hill. (R p. 63); Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(b). Thus, Chapel Hill’s towing ordinance does, on its face, create a private cause of action. Accordingly, it violates the Court’s holding in Williams that the police power and business regulation statutes do not enable creation of private causes of action. Because the towing ordinance creates a private right of action, it is not supported by N.C. Gen.

Stat. § 160A-174, and cannot be upheld by that statute.

In sum, to the best knowledge of the undersigned, N.C. Gen. Stat. § 160A-

174 has never been used by any North Carolina Court of Appeals or Supreme

Court case to uphold any towing regulation. Further, towing falls outside the historic understanding and usage of that statute. Chapel Hill’s towing ordinance is so overreaching that it runs afoul of several aspects of North Carolina law and constitutional protections. Simply put, N.C. Gen. Stat. § 160A-174 cannot justify what Chapel Hill has done.

- 34 -

C. Chapel Hill Did Not Have Authority to Enact Its Towing Ordinance Under N.C. Gen. Stat. § 160A-194.

In the courts below, Chapel Hill argued that N.C. Gen. Stat. § 160A-194 is also an enabling statute for Chapel Hill’s towing ordinance. The amended towing ordinance, however, does not cite this statute as a basis for Chapel Hill’s enabling authority. (R p.49). The Court of Appeals also declined to address Chapel Hill’s argument under this statute. King, ___ N.C. App. at ___, 743 S.E.2d at 675.

There are only two cases in North Carolina upholding municipal regulations of businesses based on N.C. Gen. Stat. §§ 160A-194 and they have dealt with the prohibition of brothels, massage parlors, and similar sex-related businesses. See

Smith v. Keator, 206 S.E.2d 203, 285 N.C. 530 (1974); Fantasy World, Inc. v.

Greensboro Bd. Of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205 (2004).

Many of the arguments in Section IIB, supra, are equally applicable to both

N.C. Gen. Stat. § 160A-174 and § 160A-194, and that section is hereby incorporated by reference. Contrary to Chapel Hill’s position, this statute does not grant municipalities the power to regulate businesses as much they please, setting their fees, and creating private rights of action. Cf. Williams v. Blue Cross Blue

Shield, 357 N.C. 170, 191 n.4, 581 S.E.2d 415, 430 (2003). The Supreme Court has already rejected these arguments summarily. See id., at n.4 (holding that the county equivalents to both Section 160A-174 and Section 160A-194 did not enable the Orange County anti-discrimination statute). It should do the same in this case. - 35 -

Here, Chapel Hill has attempted to stretch the reach of its delegated powers too far. The Town’s attempt to regulate towing has gone beyond protecting the health, safety, and welfare of the public. The business of towing is not akin to brothels, massage parlors, and the like; it is not inherently morally culpable or repugnant. Towing is necessary for the operation of other private business, and the towing operators have the right to earn a living, as do the businesses with which they contract. Those who park on someone else’s property have no right to that space.

Upholding Chapel Hill’s towing ordinance would allow Chapel Hill, in essence, to unlawfully abrogate the right of individuals and private business owners to use their private property and earn a living. Under the guise of

“protecting the public,” Chapel Hill has essentially exercised eminent domain over towing companies and the private parking lots and spaces of Chapel Hill business owners and residents, taking over and regulating almost every aspect of the towing business. The Town of Chapel Hill’s towing ordinance goes so far beyond anything reasonable for the protection of the public that it in fact accomplishes the opposite. Protecting the property of small business owners is far more paramount in the public interest than protecting trespassers who disregard fair notice and warning and illegally park their vehicles in deprivation of others’ rights. - 36 -

For the above stated reasons, Mr. King requests that the Court find that

Chapel Hill Code of Ordinances, Chapter 11, Article XIX §§11-301-307) has no statutory authorization and uphold the Superior Court's order deeming it void and of no force or effect.

II. EVEN IF THE TRIAL COURT IS FOUND TO HAVE BEEN IN ERROR IN HOLDING THAT N.C. GEN. STAT. § 20-219.2 WAS AN UNCONSTITUTIONAL LOCAL ACT, CHAPEL HILL’S TOWING ORDINANCE IS NONETHELESS ULTRA-VIRES BECAUSE IT EXCEEDS THE AUTHORITY GRANTED UNDER THE STATUTE.

In the courts below, Mr. King argued in the alternative that even if N.C.

Gen. Stat. § 20-219.2 were constitutional, Chapel Hill’s draconian towing ordinance exceeds any authority granted by that statute. Although the Court of

Appeals sidestepped this issue, Mr. King nevertheless preserves this alternative argument in the event it is relevant to the Court’s disposition of the case.

N.C. Gen. Stat. § 20-219.2 is titled “Removal of unauthorized vehicles from private lots.” It requires, prohibits, and/or allows, the following items:

(1) a sign, 24 inches by 24 inches prominently displayed at the entrance to a private parking lot, displaying the name and phone number of the towing and storage company, and if individually owned or leased, that the parking lot or spaces within the lot be clearly marked by signs indicating the name of each individual lessee or owner;

(2) that vehicles illegally parked may be removed with the written permission of the parking space owner or lessee with the vehicle’s owner bearing responsibility for towing and storage costs;

- 37 -

(3) that if there is a place of storage within 15 miles, towed vehicles shall not be transported for storage more than 15 miles from the place of removal, and that all other vehicles may not be stored more than 25 miles from the place of removal;

(4) that vehicle owners be informed in writing that they have the right to pay the amount of the lien asserted 6, request immediate possession, and contest the lien for towing charges pursuant to the provisions of N.C.G.S. § 44A-4; and

(5) that tow operators are not permitted to require vehicle owners to sign any waiver of rights or similar document as a condition of release, except for a form acknowledging the release and receipt of the vehicle.

See N.C. Gen. Stat. § 20-219.2 (2012).

In comparing this legislation, N.C. Gen. Stat. § 20-219.2, with Chapel Hill’s towing ordinance, Chapel Hill Code of Ordinances, Chapter 11, Article XIX §§11-

301-307, the towing ordinance far exceeds the scope of any authority possibly granted by the statute. Chapel Hill’s towing ordinance contains far more restrictive and onerous (and thus ultra vires) provisions regarding signage, fees, payment, and methods of operation.

The ordinance requires signs posted at each access or curb cut allowing vehicular access to the property, within five (5) feet of the street right-of-way line.

If there are no curb or access barriers, the ordinance requires that signs shall be

6 N.C.G.S. § 44A-2(d) sets out the basis for tow operators’ fees, stating that tow operators they have a statutorily mandated lien upon vehicles that they tow or store pursuant to express or implied contracts (i.e., when a person illegally parks with notice that they may be towed for doing so) and that they are entitled to a reasonable fee. N.C.G.S. § 44A-2(d) (2012). - 38 - posted not less than one (1) sign each fifty (50) feet of the frontage to the public street. Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-301(a)(1).

The maximum size is four (4) square feet, and the bottom must be six feet high.

Signs are also required to be placed in an interval of one at every third parking space within the lot. Id. The ordinance also dictates the details of each sign, including font size, color scheme, exact wording of towing and video surveillance language, phone number display, and height of signs. Id. The ordinance goes on to establish the fees and method of collection that are allowed, requirements to immediately report all towing actions by phone, and the location, layout, and design of each impound lot. Id., at § 11-304-307.

The Chapel Hill Ordinance also imposes a more stringent tow storage lot distance requirement that what is found in N.C.G.S. § 20-219.2(a1). "The tow storage lot must be located within 15 miles of the point of tow." Chapel Hill Code of Ordinances, Chapter 11, Article XIX § 11-307(b). Finally, Defendant-

Appellant’s towing ordinance purports to enact a private cause of action for its enforcement, as well as criminal and civil penalties. Chapel Hill Code of

Ordinances, Chapter 11, Article XIX § 11-307(b).

Thus the Chapel Hill towing ordinance grossly exceeds N.C. Gen. Stat. § 20-

219.2, as it requires an excessive number of signs in private parking lots (along with unauthorized lettering requirements), mandates unauthorized and warrantless - 39 - inspections by the Chapel Hill Police Department, sets towing fees/rates, requires operators to accept credit cards, requires drivers to report tows to the police via cell phone in violation of a town ordinance, and imposes a host of additional requirements on the towing operators.

N.C. Gen. Stat. § 20-219.2, on the other hand, simply provides for: (1) a system for removing unauthorized vehicles from private lots; (2) adequate notice and warning to individuals that they are subject to being towed if they park illegally on another’s property; and (3) contact information for the towing company for individuals that have had their vehicle towed as a result of their illegal parking.

The Town’s towing ordinance thus goes well beyond any possible authority delegated by the General Assembly in N.C. Gen. Stat. § 20-219.2. Instead, it is an egregious attempt to regulate all aspects of the towing business within Chapel Hill.

The General Assembly, by contrast spoke in a much more limited manner in N.C.

Gen. Stat. § 20-219.2. Chapel Hill’s ordinance goes from a general notice and due process statute into a comprehensive micromanagement of the business of towing.

Accordingly, in the alternative that the Court finds N.C. Gen. Stat. § 20-

219.2 to be constitutional, and further finds it to be an enabling statute despite the fact it has no enabling language, the Court should find the Chapel Hill towing - 40 - ordinance to exceed the scope of any authority possibly granted by this statute as an alternative basis for upholding the Superior Court’s ruling.

III. THE COURT OF APPEALS’ EXPANSION OF N.C. GEN. STAT. § 160A-174 VIOLATES MR. KING’S DUE PROCESS RIGHTS. The Court of Appeals’ opinion below introduced a new and very troubling constitutional issue with ramifications far beyond the facts of this case. The Court of Appeals created a novel legal standard which contradicts the Court’s previous holdings that the unfettered and unreasonable use of police power violates substantive due process and is thereby restricted by the “law of the land clause” of the North Carolina Constitution. N.C. Const. art I, § 19. The Court should explicitly overrule this standard and reasoning.

A. North Carolina’s Substantive Due Process Doctrine.

Article I, Section 19 of the North Carolina Constitution provides the basis for due process in North Carolina:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

N.C. Const. art I, § 19.

"The 'law of the land' clause has the same meaning as 'due process of law' under the Federal Constitution." Summey Outdoor Advertising, Inc. v. County of - 41 -

Henderson, 96 N.C. App. 533, 541, 386 S.E.2d 439, 444 (1989); see also State v.

Jones, 305 N.C. 520, 290 S.E.2d 675 (1982); State v. Smith, 90 N.C. App. 161,

368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866 (1989) (the term "law of the land" in art. I, § 19 of the North Carolina Constitution is synonymous with "due process of law" as that term is used in the Fourteenth Amendment of the United

States Constitution).

Federal court interpretations (including those of the United States Supreme

Court) of due process under the Fourteenth Amendment of the United States

Constitution, while highly persuasive, are not binding in construing the "law of the land" clause under N.C. Const. art I, § 19. Bentley v. North Carolina Ins. Guar.

Ass'n, 107 N.C. App. 1, 9, 418 S.E.2d 705, 709 (1992); "State constitutional due process requirements may be more expansive than the minimal due process requirements of the United States Constitution," Wake County ex rel. Carrington v.

Townes, 53 N.C. App. 649, 650 n. 1, 281 S.E.2d 765, 766-67 n. 1 (1981).

The term "due process" has a dual significance, insofar as it "provides two types of protection for individuals against improper governmental action." State v.

Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998); see also State v.

Smith, 265 N.C. 173, 180, 143 S.E.2d 293, 299 (1965); In re Moore, 289 N.C. 95,

101, 221 S.E.2d 307, 311 (1976). "Substantive due process" protection prevents the government from engaging in conduct that "shocks the conscience," . . . or - 42 - interferes with rights "implicit in the concept of ordered liberty." Thompson, 349

N.C. at 491, 508 S.E.2d at 282 (citations omitted); see also Smith, 265 N.C. at 180,

143 S.E.2d at 299; Moore, 289 N.C. at 101, 221 S.E.2d at 311." Procedural due process" protection ensures that when government action depriving a person of life, liberty, or property survives substantive due process review, that action is implemented in a fair manner. Id. (citations omitted).

Substantive due process "may be characterized as a standard of reasonableness, and as such it is a limitation upon the exercise of the police power." Smith, 265 N.C. at 180, 143 S.E.2d at 299 (citations omitted). "The traditional substantive due process test has been that a statute must have a rational relation to a valid state objective." Moore, 289 N.C. at 101, 221 S.E.2d at 311.

Substantive due process, therefore, provides "a guaranty against arbitrary legislation, demanding that the law be substantially related to the valid object sought to be obtained." Lowe v. Tarble, 313 N.C. 460, 461, 329 S.E.2d 648, 650

(1985) (citing State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)); see also State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812 (1978).

The United States Supreme Court has held that “[t]he legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 501 (1894); see - 43 - also Antonello v. City of San Diego, 16 Cal. App. 3d 161, 93 Cal. Rptr. 820 (4th

Dist. 1971); De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940);

City of Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1, 178 S.W.2d 847 (1944).

The law of North Carolina has followed this line of cases to this day. The mere assertion in an ordinance that it is for the public welfare is not enough in and of itself to bring the ordinance within a valid exercise of police power. Town of

Atlantic Beach v. Young, 298 S.E.2d 686, 307 N.C. 422 (1983).

Purported exercises of police power that have effects on trade are highly scrutinized, and their effect on trade must be no more than “merely incidental.”

State v. Smith, 143 S.E.2d 293, 265 N.C. 173 (1965). Consistent with that limitation, the North Carolina Supreme Court has stated that the constitutional guaranty of liberty embraces the “right of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood [sic] by any lawful calling; to pursue any livelihood [sic] or vocation....” Ballance, 229

N.C. at 769, 51 S.E.2d at 734. The right to work and earn a livelihood has also been recognized as a property right that cannot be taken away except under the police power of the State in the paramount public interest. See Roller v. Allen, 245

N.C. 516, 96 S.E.2d 851 (1957). A statute which prevents any person from engaging in any legitimate business, occupation, or trade cannot be sustained as a valid exercise of the police power unless the promotion or protection of the public - 44 - health, morals, order, or safety, or the general welfare makes it reasonably necessary. State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949).

Purported exercises of police power that have effects on trade are highly scrutinized, and their effect on trade must be no more than “merely incidental.”

State v. Smith, 143 S.E.2d 293, 265 N.C. 173 (1965). Consistent with that limitation, the North Carolina Supreme Court has stated that the constitutional guaranty of liberty embraces the “right of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood [sic] by any lawful calling; to pursue any livelihood [sic] or vocation....” State v Ballance,

229 N.C. at 769, 51 S.E.2d at 734. The right to work and earn a livelihood has also been recognized as a property right that cannot be taken away except under the police power of the State in the paramount public interest. See Roller v. Allen,

245 N.C. 516, 96 S.E.2d 851 (1957). The rule is that a statute or ordinance which curtails the right of any person to engage in any occupation can be sustained as a valid exercise of the police power only if it is reasonably necessary to promote the public health, morals, order, safety, or general welfare. State v. Ballance, 229 N.C.

764, 51 S.E.2d 731 (1949).

B. The Court of Appeals’ Novel Standard.

The Court of Appeals’ holding, however, only requires that an ordinance justified by N.C. Gen. Stat. § 160A-174(a) “covers a proper subject for regulation.” - 45 -

King, ___ N.C. App. ___, 743 S.E.2d at 675. That is the beginning and end of its analysis. The Court of Appeals made no requirement that the actual provisions of the ordinance have a rational relation to any valid object sought to be obtained by the ordinance.

Thus, the Court of Appeals directly the Court’s substantive due process caselaw as well as the Court’s holdings in Lanvale Props., LLC v. County of

Cabarrus, ___, N.C. ___, 731 S.E.2d 800, 810 (2012) and its predecessors as set forth above. The Court should explicitly overrule the Court of Appeals’ novel standard and apply its traditional due process analysis to this case.

C. Chapel Hill’s Towing Ordinance Violates Due Process.

As set forth above, Chapel Hill’s towing ordinance would allow it to unlawfully abrogate, in essence, individuals and private business owners of the right to their property and right to earn a living. Towing is necessary for the operation of other private business, and the towing operators have the right to earn a living, as do the businesses with which they contract. Those who park on someone else’s property have no right to that space.

Under the guise of “protecting the public,” Chapel Hill has essentially exercised eminent domain over towing companies and the private parking lots and spaces of Chapel Hill business owners and residents, taking over and regulating almost every aspect of the towing business. It’s towing ordinance goes far beyond - 46 - anything reasonable for the protection of the public, and indeed, does the opposite.

Protecting the property of small business owners is far more paramount in the public interest than protecting trespassers who disregard fair notice and warning and illegally park their vehicles in deprivation of others’ rights. The Court should correct the Court of Appeals and uphold the validity of its prior due process case law and Article 1, § 19 of the North Carolina Constitution.

IV. THE COURT OF APPEALS CONTRADICTED THE COURT’S HOLDINGS CONCERNING STANDING TO FILE A DECLATORY ACTION PURSUANT TO N.C. GEN. STAT. § 1-264.

Mr. King brought this lawsuit pursuant to the Declaratory Judgment Act.

N.C. Gen. Stat. §§ 1-253-68.

Under the Declaratory Judgment Act, North Carolina citizens are entitled to obtain declaratory relief whenever “a judgment or decree will terminate the controversy or remove an uncertainty.” N.C. Gen. Stat. § 1-256. Further, “[t]his

Article is declared to be remedial, its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered.” N.C. Gen. Stat. § 1-264.

The Court of Appeals, however ruled that Mr. King did not have standing to bring his challenge to Chapel Hill’s cell phone ban. King, ___ N.C. App. ___, 743

S.E.2d at 676-77. Without any discussion of the contours of the North Carolina

Declaratory Judgment Act, the Court of Appeals adopted the Town of Chapel - 47 -

Hill’s argument that there was not a showing that prosecution under the cell phone ban was imminent, and that therefore the claim should be dismissed for lack of standing. Id.

The Complaint and attached affidavit of Mr. King showed that he and his employees used their cell phones in violation of Chapel Hill ordinance and that Mr.

King’s towing business would be harmed and impeded by the need to pull over constantly to use his cell phone. (R pp. 1-23.) The Court of Appeals held, however, that there can be no controversy until Mr. King or his employees are actually cited for breaking the ordinance. King, ___ N.C. App. ___, 743 S.E.2d at

676-77.

This holding, however, requires that Mr. King, along with all other citizens of North Carolina, must break the law in order to exercise his rights. But Mr. King does not wish to break the law; he desires to be law abiding. The Court of

Appeals’ holding places Mr. King and all the law abiding residents of Chapel Hill into a quandary. They can either violate the illegal ordinance and be classified as lawbreakers, or they can obey the illegal ordinance and have their legal rights taken away with no recourse available from North Carolina courts.

This is exactly the situation that Article I, § 18 of the North Carolina

Constitution and the Declaratory Judgment Act are designed to prevent. The strong public policy of North Carolina is to give its citizens a chance to seek relief - 48 - from illegal or unconstitutional legislative overreach through the courts in a civilized manner rather than being forced to commit civil disobedience. Thus, the

Superior Court correctly removed the “uncertainty” that Chapel Hill’s actions have caused Mr. King to live under.

The Court of Appeals’ reasoning conflicts with a number of the Court’s holdings, Article I, § 18 of the North Carolina Constitution, and the language of the

Declaratory Judgment Act.

As a general matter, the North Carolina Constitution confers standing on those who suffer harm: "All courts shall be open; [and] every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law and right and justice shall be administered without favor, denial, or delay." N.C. Const. art. I, § 18.

The rationale of [the standing rule] is that only one with a genuine grievance, one personally injured by a statute, can be trusted to battle the issue. "The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation[s] of issues upon which the court so largely depends for illumination of difficult constitutional questions.'"

Stanley v. Dep't of Conservation & Dev., 284 N.C. 15, 28, 199 S.E.2d 641, 650

(1973) (quoting Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947

(1968) (alteration in original) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct.

691, 7 L. Ed. 2d 663 (1962)). - 49 -

While federal standing doctrine can be instructive as to general principles (as in our previous reference to Flask v. Cohen) and for comparative analysis, the nuts and bolts of North Carolina standing doctrine are not coincident with federal standing doctrine. Compare Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 166, 123 S.E.2d 582, 589 (1962) ("Only those persons may call into question the validity of a statue who have been injuriously affected thereby in their persons, property or constitutional rights." (emphasis added)), with Lujan v. Defenders of Wildlife, 504 U.S. at 560, 119 L. Ed. 2d at 364 (noting that one of the three elements of federal standing is an "'injury in fact'" that is "concrete and particularized").

Goldston v. State, 361 N.C. 26, 35, 637 S.E.2d 876, 882 (2005).

Jurisdiction in North Carolina depends on the existence of a justiciable case or controversy. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544

S.E.2d 821 (2001); Town of Pine Knoll Shores v. Carolina Water Service, 128

N.C. App. 321, 494 S.E.2d 618 (1998). "The gist of standing is whether there is a justiciable controversy being litigated among adverse parties with substantial interest affected so as to bring forth a clear articulation of the issues before the court." Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 269-270, 261

S.E.2d 21, 23 (1979), aff'd, 301 N.C. 1, 269 S.E.2d 142 (1980).

When standing is questioned, the proper inquiry is whether an actual controversy existed "at the time the pleading requesting declaratory relief is filed."

Sharpe v. Park Newspapers, 317 N.C. 579, 584, 347 S.E.2d 25, 29 (1986).

Furthermore, it is the general rule that once jurisdiction attaches, "it will not be ousted by subsequent events." In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, - 50 -

911 (1978) (judge's retirement did not divest the Judicial Standards Commission of jurisdiction or render the question of his removal moot).

There is a strong tradition in North Carolina of challenging invalid state and municipal legislation through the Declaratory Judgment Act. This Court has recently observed that:

in some instances "the simple declaratory adjudication of the illegality of the act complained of [is] the most assured and effective remedy available," id. at 884. Indeed, "a citizen seeking a declaration of the illegality" of a governmental act "often finds himself enmeshed in the intricacies of certiorari, injunction, mandamus, quo warranto, habeas corpus, or prohibition" and "has often been forced into a mystic maze," when the citizen sought nothing more than to ascertain whether a government action "is valid or not, or, if valid, what it means." Id. at 875. "The reluctance of courts to mandamus or enjoin officials, often for sound reasons, is an indication of their special position--a fact which makes a declaration of their duty as effective as a command to perform it or an injunction not to transgress." Id. at 876.

Goldston, 361 N.C. at 34, 637 S.E.2d at 882 (2005).

In Jernigan v. State, 279 N.C. 556, 184 S.E. 2d 259 (1971), the Court clarified that declaratory judgment is available to challenge the validity of a criminal statute:

The courts do not lack power to grant a declaratory judgment merely because a questioned statute relates to penal matters. When a plaintiff has a property interest which may be adversely affected by the enforcement of the criminal statute, he may maintain an action under the Declaratory Judgment Act to determine the validity of the statute in protection of his property rights. Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49; Bryarly v. State, 232 Ind. 47, 111 N.E. 2d 277 (1953), and cases therein cited. - 51 -

Jernigan at 560-61, 184 S.E. 2d at 263-64.

In Jernigan, the Court upheld the Plaintiff’s right to seek declaratory judgment concerning the constitutionality of N.C. Gen. Stat. § 148-62. See id.

After Jernigan, the Court has upheld the standing of residents and individuals to challenge criminal statutes under the Declaratory Judgment Act. See, e.g.,

Malloy v. Cooper, 356 N.C. 113, 565 S.E.2d 76 (2002) (reversing Court of

Appeals and holding that plaintiff who conducted pigeon shoots in a substantially identical manner twice a year for twelve years did have standing to challenge the amended N.C. Gen. Stat. § 14-360 concerning animal cruelty); Conner v. N.C.

Council of State, 365 N.C. 242, 716 S.E.2d 836 (2011) (upholding death row prisoners’ standing to obtain declaratory judgment concerning execution procedures).

In addition, the Court has in the past determined that it would relax standing rules because of the public interest in the controversy at hand. See, e.g., Hoke

Cnty. Bd. of Educ. v. State, 358 N.C. 605, 616, 599 S.E.2d 365, 376-77 (2004) ("In declaratory actions involving issues of significant public interest, such as those addressing alleged violations of education rights under a state constitution, courts have often broadened both standing and evidentiary parameters to the extent that plaintiffs are permitted to proceed so long as the interest sought to be protected by the complainant is arguably within the "zone of interest" to be protected by the - 52 - constitutional guaranty in question.); Smith v. County of Mecklenburg, 280 N.C.

497, 187 S.E.2d 67 (N.C. 1972).

In this case, the Court of Appeals’ restriction on standing allows the Town of Chapel Hill to successfully abuse its legislative powers. In light of the letter from the Attorney General’s Office opining that its proposed cell phone ban was illegal, Chapel Hill passed the ordinance anyway in order to make a political statement, and tried to protect the illegal ordinance from challenge by refusing to enforce it. Meanwhile, Chapel Hill’s law abiding residents are left with the threat of criminalization hanging over their heads with no legal recourse.

This cynical maneuver is a fundamental abuse of the powers delegated to a political subdivision. If a county or municipality wishes to criminalize or sanction an activity, it should not be able to protect its ordinance from challenge by failing to enforce it. An ordinance should not be allowed to label designated individuals as law breakers without them having any recourse to challenging its validity. Such a result is inconsistent with the constitution of North Carolina which explicitly gives standing in the General Court of Justice to all individuals whose reputation has been harmed, as well as their goods. "All courts shall be open; [and] every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law and right and justice shall be administered without favor, denial, or delay." N.C. Const. art. I, § 18. - 53 -

The Court of Appeals’ holding, however, denies and delays any challenge to

Chapel Hill’s illegal ordinance. North Carolina law does not and should not reward the Town of Chapel Hill’s cynical strategy to avoid challenge to its illegal ordinance.

The Superior Court had no trouble finding that there was an actual controversy concerning Chapel Hill’s cell phone ban and that Mr. King had a very real and pressing personal stake in the matter. The Superior Court trusted him “to battle the issue,” Stanley, 284 N.C. at 28, 199 S.E.2d at 650, and indeed he has vigorously pursued his rights, mounting a substantive challenge to the statute through both the Superior Court and the Appellate Division.

In addition, there has been no question raised of Mr. King’s standing to challenge the towing ordinance under the Declaratory Judgment Act. But his harm and the injury to his business is compounded further by the intersection between the towing ordinance and the cell phone ordinance. (R pp. 59-64.)

In sum, the Court should uphold Mr. King’s rights under the Declaratory

Judgment Act and Article I, § 18 of the North Carolina Constitution and reverse the Court of Appeals’ holding that he has no standing in this case.

- 54 -

V. THE TRIAL COURT CORRECTLY FOUND THAT THE NORTH CAROLINA GENERAL ASSEMBLY CREATED A COMPREHENSIVE REGULATORY SCHEME REGARDING CELL PHONE USE BY MOTORISTS AND THAT THE TOWN OF CHAPEL HILL’S CELL PHONE ORDINANCE WAS THUS PREEMPTED BY STATE LAW. N.C. Gen. Stat. § 160A-174 provides that “[a] city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United

States. An ordinance is not consistent with State or federal law when…[t]he ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.” N.C. Gen. Stat. § 160A-174(b)(5) (2011).

This legislative limitation on ordinance making power is consistent with the

North Carolina Supreme Court’s long-held view that “municipal by-laws and ordinances must be in harmony with the general laws of the State, and whenever they come in conflict with the general laws, the by-laws and ordinances must give way.” State v. Williams, 283 N.C. 550, 552, 196 S.E.2d 756, 757 (1973) (quoting

Town of Washington v Hammond, 76 N.C. 33, 36 (1877). The law of preemption is grounded in the need to avoid dual regulation. See, e.g., id. at 554, 196 S.E.2d at

759. Also, the legislature’s preference for uniformity in regulation of certain fields is an additional public policy consideration behind preemption. See Craig v.

County of Chatham, 356 N.C. 40, 46, 565 S.E.2d 172, 176 (2002). “The General

Assembly can create a regulatory scheme which, though not expressly exclusory, is - 55 - so complete in covering the field that it is clear any regulation on the local level would be contrary to the statewide regulatory purpose.” Craig v. County of

Chatham, 356 N.C. 40, 46, 565 S.E.2d 172, 176 (2002). Whether the General

Assembly intended to preempt the subject matter of cell phone use by motorists depends on the relevant statutes and legislative intent. See id.

Here, while the General Assembly has neither expressly precluded nor expressly authorized local cell phone ordinances, the regulation of traffic and motor vehicles is and always has been primarily performed by the State. See

Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650 (1943). The need for statewide regulation of cell phone usage in motor vehicles is obvious. Motor vehicles can rapidly cross jurisdictions, often several times within minutes. It would be extremely difficult for North Carolina citizens to both memorize a hodgepodge of differing rules, and then know exactly which jurisdiction they are in at all times on the road so that they can remain in compliance. This would be an absurd situation.

The North Carolina General Assembly has promulgated three statutes regulating the use of cell phones by all North Carolina motorists. First, N.C. Gen.

Stat. § 20-137.3 makes it unlawful, subject to certain exceptions, for a person under eighteen years of age to operate a motor vehicle while using a mobile phone.

Second, N.C. Gen. Stat. § 20-137.4 makes it unlawful, subject to certain - 56 - exceptions, for a person to operate a school bus while using a mobile phone. And third, N.C. Gen. Stat. § 20-137.4A makes it unlawful, subject to certain exceptions, for any person operating a mobile vehicle to use a mobile phone to type or read electronic mail or a text message. The language, context, and history of these three statutes, particularly when read together, “show a clear legislative intent to provide such a ‘complete and integrated regulatory scheme,’” so as to preempt local regulation of cell phone use by motorists. Craig, 356 N.C. at 45, 565 S.E.2d at

176.

First, the three cell phone statutes were codified in Part 9 of Article 3 of

Chapter 20. N.C. Gen. Stat. § 20-115 describes the scope and effect of Part 9, providing in pertinent part that “local authorities shall have no power or authority to alter said limitations except as express authority may be granted in this Article.”

N.C. Gen. Stat. §20-115. The legislature purposely placed these statutes in Part 9, and N.C. Gen. Stat § 20-115 expresses the legislature’s intent that local ordinances on matters within the scope of Part 9, such as cell phone use by motorists, are preempted unless “express authority” is granted to the local governments. Id.

Here, there has been no delegation of express authority to local governments, and thus the ordinance enacted by the Town of Chapel Hill is preempted and void.

Second, “the title of a statute may be used as an aid in determining legislative intent.” Spruill v Lake Phelps Volunteer Fire Department, Inc., 351 - 57 -

N.C. 318, 323, 523 S.E.2d 672, 676 (2000). From filing to ratification, House Bill

183 (2007), which resulted in N.C. Gen. Stat. § 20-137.4, was at all times broadly titled “Unlawful use of a mobile phone.” Although the statute only encompasses the use of mobile phones by bus drivers, the sweeping scope of the title evidences the legislative intent to establish a complete and integrated regulatory scheme for the use of cell phones by motorists. This is especially true since the legislature could have narrowed the scope of the title, as it did with Senate Bill 1289 (2005), whose title was modified from “Unlawful use of a mobile phone” to “Unlawful use of a mobile phone by persons under 18 years of age.”

Third, the legislature has shown an intention to regulate motor vehicles uniformly across the state. Here, the three cell phone statutes are contained in

Article 3 of Chapter 20, which was enacted in response to the growing importance and prevalence of motor vehicles. See McEwen Funeral Service, Inc. v. Charlotte

City Coach Lines, Inc., 248 N.C. 146, 102 S.E.2d 816 (1958). Consequently, the legislature sought to provide uniform motor vehicle laws, with the caption to the original legislation for Article 3 reading: “TO REGULATE THE OPERATION

OF VEHICLES ON HIGHWAYS; TO PROVIDE PENALITIES FOR THE

VIOLATION OF THIS ACT, AND TO MAKE UNIFORM THE SUBJECT

MATTER THEREOF.” Id., at 150, 102 S.E.2d 819 (emphasis added) (internal quotation marks and citation omitted). Craig v. County of Chatham is also - 58 - instructive. In Craig, the Court found local swine farm regulation preempted when the legislature evinced its preference for uniform regulation of a subject matter and when local regulation could risk inconsistency between local governments, which would present an undue burden on those regulated. See Craig, 356 N.C. at 48, 565

S.E.2d at 177-78. Much like the issue of uniformity with swine farm regulation discussed in Craig, the legislature’s apparent desire to ensure uniform regulation of motor vehicles strongly favors preemption.

Recently, courts in Pennsylvania have struck down similar cell phone ordinances. See, Commonwealth v. Reyes, No. SA-228-2010, 2011 Pa. Dist.

&Cnty. Dec. LEXIS 90, at *7 (Pa. D. & C. May 4, 2011) (invalidating an ordinance in Allentown and noting if a municipality is permitted to regulate cell phone use while driving, “[a] motorist could be utilizing a cell phone while driving in a municipality without a ban and, moments later, be unaware that he was violating the ordinance. To subject motorists to such inconsistency cannot be considered reasonable, and would certainly be contrary to the intended purpose of the Vehicle Code.”); Dan Meyer, Judge Overrules Town on Cell-Phone Driving

Ban, RADIO COMM. REP., July 17, 2000 (noting a judge invalidated an ordinance in Hilltown on the grounds that driving laws should be uniform across the state). - 59 -

In sum, as the Attorney General's letter to the Town concluded, the Chapel

Hill cell phone ordinance is preempted by a comprehensive scheme of regulation by the General Assembly. The Town of Chapel Hill, however, argued extensively with the Attorney General's assessment adopted by the Superior Court. See Chapel

Hill COA Br. at 22-32.

With all respect, Chapel Hill’s tortured analysis below fails to address the crucial fact that the General Assembly has repeatedly addressed the issue of talking by drivers on cell phones state wide. Many bills have been introduced banning all cell phone use while driving as Chapel Hill's ordinance has done, none of which have passed. See, e.g., House Bill 44 2011-12 Session, House Bill 31, 2011-12

Session, Senate Bill 36 2011-12 Session, Senate Bill 22 2009 Session, Senate Bill

12, 2009 Session, HB 1104, 2005 Session. Chapel Hill also purposefully overlooks the fact that the N.C.G.S. § 20-137.4A was the result of a compromise in which the General Assembly considered and rejected the approach taken by Chapel

Hill for the state of North Carolina.

Contrary to its arguments, there is nothing unique about individuals using cell phones driving through Chapel Hill as opposed to any other community.

There has been no showing in the record that Chapel Hill needs to be exempted from the same balancing on this issue that the General Assembly has adopted for the rest of North Carolina. - 60 -

Further, the General Assembly has legislated in an area where there is a need for consistency throughout the state of North Carolina. This case impacts the daily lives of millions of North Carolina drivers. If the Town of Chapel Hill and other

North Carolina municipalities are all allowed to pass their own laws about cell phone usage over and above what the General Assembly has done, there is a real danger of an inconsistent hodgepodge of cell phone laws jurisdiction by jurisdiction. A cell phone call could be legal when started but then become illegal as a driver enters a different city or county. Thus, the Court should hold that

General Assembly’s comprehensive and uniform legislation preempts the Town of

Chapel Hill’s cell phone ordinance and uphold the Superior Court's determination that Chapel Hill’s cell phone ordinance is void.

CONCLUSION

Mr. King respectfully requests that the Court affirm the ruling of the

Superior Court. With regards to the towing ordinance, Mr. King asks the Court to hold N.C. Gen. Stat. § 20-219.2 to be an unconstitutional local act, hold in the alternative that Chapel Hill’s towing ordinance is ultra vires, and also hold that the towing ordinance is not within any police powers or other granted legislative powers that Chapel Hill may have. Regarding the cell phone ban, Mr. King asks the Court uphold the Superior Court’s holding on the merits that Chapel Hill’s cell phone ban is void due to preemption by State law and that it is thus not within any - 61 - police powers that it may have. Mr. King also requests whatever other relief the

Court may find just and proper.

This the 23rd day of December, 2013.

STARK LAW GROUP, PLLC

By: /s/ Thomas H. Stark /s/ Seth A. Neyhart ______Thomas H. Stark NCSB No.: 10052 Seth A. Neyhart NCSB No. 27673 Attorneys for Plaintiff 6011 Farrington Road, Suite 300 Chapel Hill, NC 27517 Telephone: 919.490.5550 Facsimile: 919.490.5551 [email protected] [email protected]

- 62 -

PROOF OF SERVICE

This is to certify that the undersigned has this date served the Plaintiff- Appellant’s Brief in the following manner:

( ) by facsimile to:

(X) by causing copies of same to be placed in an official depository under the exclusive care and custody of the United States Postal Service, postage prepaid, first class, addressed as follows:

Ralph Karpinos Attorney for The Town of Chapel Hill 405 Martin Luther King Boulevard Chapel Hill, NC 27514

( ) via Federal Express addressed as follows:

( ) by hand delivery as follows:

(X) via email to:

[email protected] [email protected]

This the 23rd day of December, 2013.

STARK LAW GROUP, PLLC

By: /s/ Thomas H. Stark ______Thomas H. Stark Attorney for Plaintiff NCSB No.: 10052 6011 Farrington Road, Suite 300 Chapel Hill, NC 27517 Telephone: 919.490.5550 Facsimile: 919.490.5551 [email protected]