No matter the decision, appeals likely in latest lawsuit
RALEIGH — With lawmakers from Buncombe and Henderson counties looking on in Wake County Superior Court on Friday, attorneys for the state and the city of Asheville made their latest legal case in the decades-old debate about the ownership of the Asheville municipal water system.
At the end of nearly two hours of oral arguments, Judge Howard Manning Jr. offered little confirmation of how he would rule. But there was one thing both sides seemed to agree on — any ruling is likely to be appealed and the suit may, eventually, find its way to the state Supreme Court.
Manning, who ruled in a previous trial about the water system, said a decision on the latest case depends on whether the legislation was, in fact, a local bill and whether it applied to sanitation and public health, a combination that would run afoul of Article 2, Sec. 24 of the state constitution, which says the General Assembly cannot enact local local legislation “relating to health, sanitation, and the abatement of nuisances.” He also declined to consider legislators’ statements from committee hearings or from the floor of either the state House or Senate.
“Our constitution says what it says. Section 24 says what it says,” Manning said. “That’s where we are. So, gentlemen, we need to get to the merits of this thing, because this is your final shot.”
Manning told attorneys for the state and the city of Asheville to send him a two-page summary for review within a week. According to a previous order, an injunction preventing the formation of the regional water system expires 30 days after Friday’s hearing. Manning said he expects to begin drafting his opinion before that deadline, but he did not set a specific date.
He also said he would not attempt to “blue pencil” or rewrite the legislation, which was introduced by Rep. Tim Moffitt, R-Buncombe, and backed by Rep. Nathan Ramsey, R-Buncombe, and Rep. Chuck McGrady, R-Henderson. As a judge in Wake County, Manning said he’s taken heat from the legislature about judicial activism.
While both McGrady and Moffitt watched the proceedings in court, Asheville’s attorney Dan Clodfelter disagreed with the state’s assertion that the bill was not local in nature. An attorney with the Charlotte-based law firm Moore and Van Allen, Clodfelter himself served as a state senator until last month, when he was named the mayor of Charlotte.
The bill does not specifically name the city of Asheville. But Clodfelter said it was clear that was lawmakers’ intent, rather than creating a statewide bill with a general set of principles to administer.
He ticked through a series of maps showing how the law ultimately only applies to Asheville.
“It started out with a goal or objective to apply to Asheville and then built an edifice around that to make sure that goal was accomplished,” he said.
He stressed that the law represents more than just a change in the governance of the water system. Citing language in the original bill, Clodfelter said it was clear that, in affecting the provisioning of water and maintaining a sewer system, the bill “relates to sanitation and public health” as defined under the state constitution.
I. Faison Hicks, a special deputy attorney general who represented the state, said Asheville is trying to have it both ways.
“The water system is not going to change, the people it serves will not change, the quality of service will not change,” Hicks said.
He said the city has admitted as much, which also negates the public health argument. The intent of the bill, he added, was to settle disputes between municipalities and counties over governance of water systems.
The two sides also scrapped over how bondholders would react and bond debt handled by the new entity, which, under the law, would not have the same taxation power as the city of Asheville or the Metropolitan Sewerage District of Buncombe County.
After the hearing, Moffitt and McGrady said they expected the case would not end soon.
“The judge was very well prepared, very knowledgeable,” Moffitt said. “I expect (that) whatever the decision is, one side — or both sides — will pursue an appeal.”
McGrady agreed.
“The battle may be over, but the war goes on,” he said.
Asheville Mayor Esther Manheimer said she felt confident after the hearing, given Manning’s focus on the constitutional issue.
“It certainly felt like the city has a strong case,” she said. She took note that Manning stopped early on to remind those present that officers of the court, mayors, legislators and all other elected officials take the same oath of office to uphold the constitution.
“I think it was significant that he paused to do that,” she said.
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