State Rep. Tim Moffitt said he wasn’t surprised that an N.C. judge deemed invalid and unconstitutional a law passed last session by the N.C. General Assembly. Maybe that’s because the honorables have had their hands slapped more than once after ramming through legally problematic legislation. The attorney general’s office is doing brisk business in court these days defending the Republican legislature’s moves.
The latest rebuke came Monday from Wake County Superior Court Judge Howard Manning Jr., who found that a bill Moffitt sponsored transferring Asheville’s water system to a regional authority violates the state constitution, “lacks a rational basis” and calls for an “unlawful taking.”
“The Water Act 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 a public use,” Manning wrote in a 10-page decision.
He noted that the law violates the state constitution’s guarantee of equal protection because it “transfers the water system to another entity without any rational basis for doing so,” “will not result in any higher quality of water” and gives the system “to an entity that has never owned or operated a public water supply and delivery system.”
These arguments have the ring of familiarity to us in Charlotte. City leaders and others raised similar objections to the legislature’s transfer last year of the Charlotte Douglas International Airport to a regional commission. That unprecedented power grab led to a Twister-game of gyrations from lawmakers to evade legal obstacles and still wrest control of the city’s airport.
This week, in a surprise move, Republican lawmakers introduced legislation declaring the regional commission an agency of Charlotte’s city government, something the Federal Aviation Administration said it needed to know before giving approval for the commission to run the airport. Trouble is, the city would have no say over the commission. City officials are right to call foul and declare the legislation an attempt to subvert their lawsuit against the transfer. It’s a ruse, plain and simple, and if it passes – as it is on the way to doing in the short session – the judge and the FAA will hopefully see it as such.
Of course, leaders of this legislature are doggedly determined to get their way, in any way they can.
In the budget the Senate approved a couple of weeks ago, lawmakers inserted provisions that seem designed to thwart judges and their rulings striking down laws legislators have passed. One provision requires a three-judge panel to decide future lawsuits challenging laws passed by the General Assembly. In addition, any challenge to the validity of a legislative act would have to be filed in Wake County (Raleigh) and heard there by a panel selected by the Chief Justice of the State Supreme Court, who coincidentally is expected to be a Republican this fall.
Proponents of the change say it would thwart “venue-shopping” where plaintiffs file lawsuits in courts where they believe they’re more likely to get a sympathetic judge. Some observers say that’s a dig at Judge Robert Hobgood, a Democrat, who ruled lawmakers acted unconstitutionally in enacting legislation forcing teachers to give up tenure rights. He also put a hold on lawmakers’ voucher legislation. The state Supreme Court stayed that injunction last month.
But it should be noted that Judge Manning, who struck down the legislature’s transfer of the Asheville water system, is a Republican. So, judicial concern over these laws has crossed party lines.
Further, in a June 2 letter, the North Carolina Bar Association raised “serious concerns” about the judicial changes as well as another in the budget that would automatically stay any judge’s ruling invalidating a legislative act. Said Allan Head, N.C. Bar executive director: “There is no legitimate reason for constitutional challenges to be treated differently from other declaratory suits in terms of venue. Moreover, constitutional challenges may arise in suits between private citizens and disparate treatment of such challenges will create doubt about fairness in the public mind. We also have strong concerns about the constitutionality of a legislature telling a court it must automatically stay its own orders. This provision is a violation of separation of powers and not in the best interests of the public.”
Perhaps the warnings had impact. The House budget does not include the three-judge panel or the automatic stay provisions. The Senate should keep them out of the final budget.
Additionally, the N.C. legislature should take a breather and back off pushing ideological legislation with clear constitutional problems. It’s wasting time and taxpayer money.
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