Litigating Legislating Around The Constitution


Another day in Wake County Superior Court yesterday in the case of “Moffitt v. Asheville,” Judge Howard Manning Jr. presiding. Rep. Tim Moffitt and Rep. Chuck McGrady, R-Henderson were on hand for the hearing in the lawsuit challenging Moffitt’s “Regionalization of Public Utilities” law that forcibly transfers control of Asheville’s water system to a new regional authority.

Much hinges on whether or not Moffitt’s bill was deliberately written to evade the state’s constitutional ban in Article 2, Sec. 24 on enacting local legislation “relating to health, sanitation, and the abatement of nuisances.” Asheville activist Barry Summers was there to remind attendees — graphically — not of the water system’s history, but of the legislation’s.

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.

“Our constitution says what it says,” Manning said, indicating that the constitutional question was the crux of the case. Expect an appeal, however Manning rules.

Moffitt v. Asheville is a style of legal shenanigans we have seen emerge over the last decade from Wall Street to Jones Street to Pennsylvania Avenue. That is, to push the limits of the law to the breaking point and beyond, to knowingly step over the line and — using the law itself for cover — to arrogantly dare anyone to push back. If no one does, or if they do and fail, those who twist the law to their own ends succeed, and the boundary between the legal and the criminal moves again, and not in the direction of the public good. Rinse, repeat. Thus, torture becomes “enhanced interrogation,” fraudulent securities become top-rated investments, and public investments in schools, water systems, highways and airports slowly become the private wealth of oligarchs. Like watching an accident in which everything goes into slow motion, it is happening before our very eyes. Because it transpires in remote meeting rooms under color of law, we the people are not supposed to notice.

(Original post has been corrected. Rep. Nathan Ramsey was not in attendance Friday, but was cited in reporting as an original sponsor of the water bill.)


  1. Too nice outside to do a whole review of what happened in court yesterday, but one thread stuck in my mind.

    Judge Manning made a point of discussing how ‘Article 2 Section 24’ of the NC Constitution came to be. Around 1900, there had been amassed in his words, a “hodge podge” of local laws on every subject imaginable, water systems included. It was recognized that this was an untenable situation, and would lead to all sorts of problems. Therefore, the State Constitution was amended to include a list of “Prohibited Subjects”, that the legislature would be barred from enacting local laws on. He is very much grappling with the fact that Rep. Moffitt’s attempt to take away the water system and give it to another political entity runs afoul of that.

    At one point, the attorney for the State brought up the tortured history of the Asheville water system, and how the legislature was simply remedying a dysfunctional situation. At his next opportunity, Charlotte Mayor Dan Clodfelter, Asheville’s lead attorney on the case, reminded the Judge that this argument reveals that the Water Act as it’s called, doesn’t simply run afoul of Section 24 accidentally – this type of argument is precisely why the Section exists in the first place. Every city, county, district, and region in the State has tensions and histories of friction over this issue or that. Local legislators all over (like Reps. Moffitt, McGrady, and Ramsey) have political scores to settle that, they would argue, can only be settled by Raleigh and the political party that happens to be in control at the time.

    Allowing the General Assembly to start passing local acts dressed up as general laws will lead to the kind of chaos that Section 24 was created to prevent.

    Judge Manning is set to retire at the end of this case. He doesn’t seem to be the kind of guy who wants his legacy to be opening up the floodgates to Hell…

  2. Oh, BTW – Rep. Ramsey was not in attendance. Something more important having to do with milk, no doubt.

  3. OK, sorry to be doing this piecemeal, but this is how I’m processing it…

    After determining that the legislation is a ‘local act’ masquerading as a ‘general act’ (which it sounds like Judge Manning has already made up his mind that it is), the other point that is pivotal is: does it “relate” to health and sanitation?

    The State’s argument is basically that the legislation only affects the ‘governance’ of the water system, and not anything having to do with health or sanitation. The State attorney made a point of saying that no one has demonstrated that MSD is not capable of running the water system responsibly and providing safe drinking water, so therefor, the legislation does not “relate” to health or sanitation.

    Mayor Clodfelter named several legal precedents that appear to invalidate this argument. And unfortunately for the State, you don’t have to look very far for a stark real-world example of why this a demonstrably false argument.

    This Judge is very familiar with the state of the Asheville water system after the collapse of the Water Agreement, back in 2004. And he knows why the City dissolved the Agreement: they couldn’t get Buncombe County (under the leadership of our friend Nathan Ramsey) to agree to rate increases to pay for necessary maintenance on the system. The ‘governance’ structure, in this case a dysfunctional triumvirate, proved itself unable to maintain the system responsibly, letting it fall into disrepair, and that absolutely had the potential to adversely affect “health and sanitation”. If you are of the Ramsey-esque school of Asheville-bashing, you’ll say that the problem was rooted in the City’s having diverted water revenues to pay off the Depression-era debt from the 50s to the 70s, and that therefor County was justified in sitting on their hands. Go ahead, and make that argument – you’ve just demonstrated how a shotgun marriage of squabbling political entities fighting generations-long grudges is no way to run a water system.

    The Moffitt/McGrady/Ramsey-proposed regional authority could prove to be even more dysfunctional, with the largest population served, the City of Asheville (roughly 60% of the water customers, roughly 75% of MSD’s revenues), receiving only 20% of the voting power within the authority.

    Judge Manning knows very well that a change of governance can dramatically affect health and sanitation.

  4. One thing I was disappointed over – there was only passing mention of the Greenville issue. In laying out the legislative history of the Water Act, Clodfelter spelled out how the General Assembly amended the Act long after it was enacted, in a patent attempt to undermine the City’s lawsuit.

    The Judge quickly agreed that this was the case, so that may have been why Clodfelter skipped past the issue, only stating, “The State’s case for some reason, claims that the Act still applies to Greenville, when it clearly doesn’t” (as with most of these quotes, paraphrased). The Judge cut him off short with, “Right. Greenville is out.” Given how much the Judge had been slapping the State attorney around before then, I expected him to ask why his case makes this false claim, but he didn’t, and Special Deputy Attorney General I. Faison Hicks didn’t volunteer a word to defend himself.

    Clodfelter was riding a wave of agreement from the Judge during this whole section, so he seemed to sail past the points that Manning had already made up his mind on.

  5. Nancy says:

    The argument the State makes – that regionalization would not adversely affect the safety of drinking water – seems to presume the Constitutional prohibition speaks to the issue of quality and competence, rather than the scope of coverage. The Constitutional language addresses the domains of impact; drinking water is a primary component of (public) health, as universally defined. Therefore, the challenged legislation is a local Bill ‘….relating to health, sanitation…..’ The qualifier, that the impact of the Bill would not negatively impact public health, is immaterial. It doesn’t matter whether they claim it’s a good change, bad change, or negligible one; it’s simply forbidden by the Constitution for this to be enacted by the State legislative body for a municipality.

  6. I was interested to read this piece on the water hearing, which took place on Friday in Raleigh.

    In this post, you quote, without attribution, information from a story written by Carolina Public Press reporter Kirk Ross. The original story, which was republished by the Asheville Citizen-Times, can be found here:

    I thought it was necessary to clarify where some of this information came from and to provide your readers with the rest of that information in context.

    Angie Newsome,
    Editor, Carolina Public Press

  7. Angie – not being the person who published the original post or anything, but I think it should be noted that the paragraph that contains the quote you refer to begins with a direct link to the CPP story: “Much hinges on whether or not Moffitt’s bill was deliberately written to evade the state’s constitutional ban..”

    Don’t know if you saw that. Either way, is that not explicit enough attribution? If you feel that it is not, I respect that & will take note of it, as I’m sure the original poster will.

    I wonder if you can tell us how it transpired that the AC-T’s only coverage of this hearing was to republish your story? I spoke to Kirk Ross at the hearing, but he only identified himself, at least to me, as covering it for CPP.

  8. Tom Sullivan says:

    As Barry did, I too noted that the AC-T’s coverage originated with Carolina Public Press. That’s why before posting on Saturday I removed link to the AC-T and replaced it with the same link Barry saw to the Carolina Public Press original that Angie left in the comments.

  9. Sean says:

    I had the privilege of sitting down with the A C-T’s newest Editor-In-Chief, Josh Awtry, recently over a beer. He was excited about local partnerships such as the one they have with CPP. This partnership is why a CPP story ran in the A C-T.

    I personally find it refreshing that someone in charge of a Gannett publication sees collaboration possibilities where others would see competition. The citizens are the obvious beneficiaries from this enlightened viewpoint.

  10. Hey, just getting back to this… Thanks for noting that this is originated with a CPP story. As Sean mentioned, yes, they republished our story because we have a content-sharing agreement with the AC-T, as we do with other news organizations throughout the region and state, including The Charlotte Observer, WLOS-TV, WCQS, Mountain Xpress and others. You can view our content sharing details here:

    We are the only news organization in Western North Carolina with reporters in Raleigh, so news organizations often rely on our reporting on the NCGA and other issues pertaining to WNC that happen in Raleigh. Kirk Ross was covering the hearing as a reporter for CPP, not for the AC-T. It’s part of our structure and nonprofit business model to allow for content sharing. Hope this is helpful in some way, and I’m happy to answer any other questions, either here or by email ( or in person.

  11. Continuing my piecemeal report from the hearing on the Asheville lawsuit:

    Discovery: this was the lead argument in the hearing – how much could the City of Asheville demand from the State in terms of answering questions relating to the case?

    The disagreement seems to have boiled down to this: the City, in their briefs they filed late last year, asked a number of questions, or ‘interrogatories’ of the State. The attorney for the State, Faison I. Hicks, claimed that those question exceeded the limit of 50, in that many of them had numerous sub-parts. Answering all of them became, in his words, “incredibly onerous”. He claimed that the City was “attempting to win the case through the back door”, by getting the State to admit to so many disputable facts. So they just stopped answering them.

    The City claimed that this, in effect, constituted an admission by the State that none of the facts stated in the City’s brief are disputed. The State argued that there are case precedents on his side; the City claimed the same.

    Judge Manning eventually agreed with the City, saying in so many words, that there were “no undisputed facts in the brief”.

    Hicks jumps up: “Your Honor, may I respond to that?”

    Judge: “No.”