Judge's arguments on water issue hard to refute
Published June 19, 2014
Editorial by Asheville Citizen-Times, June 13, 2014.
The struggle over Asheville's water system is far from over, but those who would strip the city of this valuable asset have an uphill battle from now on.
In its challenge of the 2013 law transferring the water system to the Metropolitan Sewerage District, the city made six points. Wake County Judge Howard Manning ruled for the city on four of the six and did not address the other two, concerning relations with bondholders.
"The Water Act," the judge wrote, "transfers the assets and debts of the Asheville water system without consent and over the objection of Asheville, the water system's owner." This is unlawful on several grounds, he ruled.
To begin with, the bill clearly was a local act applicable only to Asheville, the judge ruled, even though supporters claimed it wasn't. As such, Manning said, it was unconstitutional because the North Carolina constitution forbids local laws regarding "health, sanitation ... (and) non-navigable streams."
Further, the law "is not a valid exercise of the sovereign power of the legislative branch of government (or the state of North Carolina) to take or condemn property for public use." Manning noted that, in this case, the system already was in public use and there would be "no change in the existing uses or purposes."
He said there was no demonstrated rational basis for singling out the Asheville system for special treatment and compared the transfer to forcing one corporation to turn over all its assets to a competitor.
Even if the transfer were to be upheld, Manning wrote, Asheville would be entitled to compensation. He noted that audited financial statements show the system's value to be more than $100 million.
Response was predictable. "The decision in Asheville's water lawsuit is a victory for the citizens of Asheville and the citizens of North Carolina," Mayor Esther 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."
State Rep. Tim Moffitt, a Republican from suburban Asheville who pushed the law through the General Assembly, said, "I'm not surprised or disappointed. This is the first step in a very long journey."
There's no question about that. The litigation is bound to work its way upward through North Carolina's appellate court system, and maybe even into federal court. The case could drag on for another decade.
We're not arguing that the water system necessarily should remain under city ownership. There are advantages to regionalization in many governmental services, ranging from recreation to public safety to utilities.
But any transfer should be undertaken after consultation with and with the support of those affected, and not imposed from Raleigh. The best way out of this mess would be for the General Assembly to repeal the 2013 law and set up a study of regionalization statewide.
The chances of that happening are slim. More likely, the Asheville case will drag on, and on, through the courts.
As it does, proponents of the transfer will have a hard time refuting Manning's arguments. For one, he rejected the subterfuge of writing a "statewide" law in such a way that it applied to only one city. Without mentioning it, he also pushed aside the preposterous claim that the water system belonged not to the city but to its customers.
Appellate courts will not reject his reasoning lightly. Those who would take the Asheville system will have to convince appellate judges not just that the city is wrong but that a respected trial judge is wrong.
