Asheville Mayor Esther Manheimer (front left) and City Councilman Marc Hunt (front right) leave Wake County Superior Court following a 2014 hearing on the future ownership of the city's municipal water system. File photo by Kirk Ross/Carolina Public Press

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The General Assembly’s bid to force the regionalization of the Asheville water system is an unconstitutional over-reach, the city’s attorney argued Tuesday before the state Supreme Court.

An attorney representing the state countered that a literal, absolutist interpretation of a provision of the state Constitution barring the legislature from making local health decisions — the basis on which a lower court originally found the law unconstitutional before the Court of Appeals disagreed — no longer makes sense.

Faison Hicks, arguing for the state, sought to cast Asheville as attempting to use the letter of the law to shield discrimination, in this case against water customers who aren’t city residents.

“I’m trying to demonstrate there is an undeniable, documented record going by 70 or 80 years of the city using control of a trust property … to discriminate against groups of the state’s people,” he said.

Attorney Matthew Sawchak, arguing for the city, countered that such concerns have already been addressed by laws known as the Sullivan acts, which prevent the city from charging higher water rates to customers outside city limits.

Laws, Sawchak said, must be evaluated not on their professed intent but on their effect on the ground. And this law, he said, would have an effect on the ground related to health and is limited to one locality, and is thus unconstitutional.

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The 2013 law passed by the General Assembly mandates that water system’s transfer from the city to a new regional authority. Critics have warned that, while most of the system’s customers are city residents, they would have a disproportionately small voice in how the regional water system would be run.

After the Court of Appeals overturned the initial ruling favorable to Asheville, the city appealed that finding to the state Supreme Court. The City of Wilson and the North Carolina League of Municipalities have filed briefs with the court on Asheville’s behalf.

The law in question would shift the governance of health-related resources. Sawchuk argued that this should qualify the law as being related to health and sanitation.

If that’s the case, the law, which pertains only to Asheville, would run afoul of a provision in the state Constitution that bars the General Assembly from passing local acts “relating to health, sanitation, and the abatement of nuisances,” Sawchuk said.

But Hicks argued that sometimes other factors impose limits on constitutional protections.

“If that weren’t so, people could go out to a crowded motion picture theater and shout fire,” he said.

He urged the justices not to “live and die by what Merriam-Webster says.”

“If that’s the case, then this court will bind the hands of the people’s duly elected representatives forever,” he said.

Justice Robin E. Hudson asked what other constitutional provision might override the prohibition on local bills relating to health.

Faison clarified his point.

“We simply live in a different era (than when the provision was drafted),” he said. “I think it is now safe, I am saying, for the courts to adopt a more relaxed view of the constitutional phrase ‘relating to health.’”

He pointed to the variety of extant water quality regulations at the federal and state level.

Justice Paul M. Newby asked about the way the wording of the bill focuses on services, rather than water.

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“That goes to the real tension in this case,” Faison said.

He emphasized the General Assembly has the authority to give and remove powers from political subdivisions of the state.

Sawchak countered that the General Assembly has that authority, according to the Constitution, except as other parts of the Constitution limit it.

The court’s ruling could have practical as well as legal implications.

Legislators have signaled that they’ll rewrite the law to avoid constitutional hurdles if the current provision is struck down. But because the initial court case ended in a summary judgment, without a full hearing of the case, a decision ordering the lower court to rehear the matter could draw the legal proceedings out.

And that might add impetus for a compromise between state and city officials.

Ted Strong

Ted Strong is a contributing reporter to Carolina Public Press. Contact him at ted.g.strong@gmail.com.

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