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UPDATE: Noelle Talley, public information officer for Attorney General Roy Cooper, said, in an email to Carolina Public Press Tuesday, that attorneys with the N.C. Department of Justice plan to file notice of appeal in this case.

Carolina Public Press will update this story as more details become available.


Story from June 10, 2014:

RALEIGH — In a strongly worded ruling issued Monday, Wake County Superior Court Judge Howard Manning found that last year’s move by the N.C. General Assembly to shift control of the Asheville water system to a new regional authority violated the state constitution’s limits on legislative power.

Manning said that although it passed as a statewide bill, the legislation mandating the change was a local act, despite its sponsors’ assertions that it was not.

Unless overturned on appeal, the ruling prevents the state from “implementing or attempting to implement The Water Act.”

The 2013 bill, entitled “Regionalization of Public Utilities” was sponsored by Buncombe County Reps. Tim Moffitt and Nathan Ramsey and Henderson County Rep. Chuck McGrady, all Republicans, and passed on mostly party lines with only one Democratic vote in the House.

The city’s legal team successfully argued that the act was written and later modified in the legislative process so that only one water system in the state fit the criteria, making it a local act.

The state constitution prevents the legislature from passing local acts dealing with health and sanitation, which under previous precedents include drinking water and sewer systems.

Manning’s ruling also notes that the takeover of the system violated another prohibition on local acts dealing with non-navigable streams, which in this case includes those that flow into the water system’s reservoirs.

Although he did not tip his hand, at a late May hearing on the case, Manning appeared to be ready to rule on the constitutional issue, the centerpiece of the city’s case, but he allowed other arguments to continue as well and in all backed the city in four of its six arguments against The Water Act.

MORE: Raleigh judge hears city, state arguments on Asheville water system’s future

His ruling also backed the city’s contention that changing who has authority over the water system without compensating the city for it constituted a “taking” for which the city received no compensation. Asheville is entitled to the same constitutional protections as an individual or corporation, Manning wrote in his ruling.

“Consider the impact of a statute requiring (Cary software giant) SAS to transfer its entire proprietary corporate business and its control to a competitor, another proprietary business, without SAS’ consent for an alleged public purpose in favor of cutting costs and consolidation of business resources,” Manning wrote.

He also ruled that The Water Act violates the so-called “law of the land” clause of the state constitution requiring a “rational basis” for the move.

“The decision in Asheville’s water lawsuit is a victory for the citizens of Asheville and the citizens of North Carolina,” Asheville Mayor Ester Manheimer said in a statement to Carolina Public Press. “Judge Manning has righted the imbalance created by the legislature’s unconstitutional acts, by protecting local control and preserving the rights of citizens to make decisions about their communities.”

She said it was significant that, during last month’s hearing, Manning allowed the full range of arguments to go forward and that ruling on points beyond the initial claims that the legislation violated prohibitions on local acts bolsters the city’s chances during the appeals process.

Asheville City Council members also expressed joy over the ruling. On their Facebook pages, Gordon Smith wrote, “Thanks to everyone who has supported the public’s right to this public utility,” and Cecil Bothwell noted the win and tweaked the bill’s chief sponsor. “Moffitt,” he wrote, “can go to blazes.”

Both sides have said they expect the ruling to be appealed, a point Manning noted during arguments and in his ruling.

Moffitt said last month he expected to see appeals filed no matter how the ruling went down. He told the Asheville Citizen-Times Monday that he had not yet read the ruling, but was neither surprised nor disappointed.

“This is the first step in a very long journey,” he said, according the newspaper.

It is not the first time that Manning has ruled in an Asheville related water case, and he noted that his last ruling, in 2007, which went against the city, was issued on Groundhog Day.


Summary judgement, Asheville water lawsuit June 9, 2014 (PDF)
Summary judgement, Asheville water lawsuit June 9, 2014 (Text)

Kirk Ross

Based in the Triangle, Kirk Ross is the capital bureau chief for Carolina Public Press. Contact him at kross@carolinapublicpress.org.

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