CHAPTER 22
AMENDMENT ONE
Corruption is nature’s way of restoring our faith in democracy.
—Peter Ustinov
The weekend is a whirlwind of noise. With ringleading from Billy Richardson and strategic assistance from Skip Stam—who is still in Paris—Mona Wallace and Bill Graham hatch a plot to introduce an amendment to HB467 before the Speaker can call for a vote on the third reading. The amendment is laser-guided. It targets only the retroactivity provision and leaves the rest of the bill untouched. They can argue the substance of the rule change when the bill goes over to the Senate. The only ground they stand a chance of gaining at the moment—and that chance is slight—relates to the “pending litigation” language. If that language dies before the bill makes its transit to the upper chamber, it is unlikely to be revived. If, on the other hand, it survives the full House, even Governor Cooper won’t be able to stand in its way.
To make the amendment attractive to Republicans, however, they need the right sponsor. Billy Richardson is a Democrat. And Skip Stam, for all his conservative bona fides, is no longer in office. They search for a Republican of character to put his stamp on the amendment.
They find such a man in John Blust.
Blust is an attorney and former U.S. Army captain from Greensboro. Like Skip Stam, he is a devout conservative whose truest allegiance is to the rule of law, not to any party or clique. He is a devotee of Churchill, who said, “The truth is inconvertible. Malice may attack it, and ignorance may deride it. But in the end, there it is.” After taking a look at HB467, he decides he can’t support it. It is not in the interests of the people he was elected to serve. He is reluctant to face the hog barons’ howitzers. But his conscience demands it.
He agrees to sponsor Amendment One.
His defection is met with derision from the Dixon wing of the GOP. On Sunday, as Skip Stam and his wife are flying home from Paris, Pat McElraft, a blustery Republican from Emerald Isle, takes Blust to task in an email to the GOP caucus. After trotting out one of the industry’s favorite screeds—that radical environmentalists are behind the opposition to HB467—she argues that the bill is a critical bulwark against the anti-capitalist, anti-agriculture left.
While the intramural conflict rages within the GOP, Mona and Bill make their final pitch to representatives on both sides of the aisle. The situation is so precarious that they’re not afraid to beg, to plead their clients’ case, even to show glimpses of the skin they have in the game.
No matter how loudly Jimmy Dixon and the hog lobbyists bloviate, this contest isn’t about the trial bar. It’s about the hundreds of citizens whose health and quality of life the hog barons have treated as disposable for more than a generation. Juries put a price tag on pain and suffering. They force the bean counters inside recalcitrant corporations to factor the human and environmental costs of production into the cost of doing business. For far too long, the hog barons have required everyone else to pay the price of their pollution. No more. HB467 must be amended. Otherwise, Smithfield will never pay its fair share.
As persuasive as the argument sounds to Mona and Bill, the math they face is daunting. If all 120 House members show up and vote, they need 16 Republicans to join the 45 Democrats to approve the amendment, assuming there are no Democratic turncoats. They take no vote for granted. They accept every meeting. As the afternoon softens into evening, they count the votes they have in hand. Many legislators are still undecided. The fate of the amendment—and the litigation—is going to come down to the speeches on the floor and the consciences of the wavering members. Until the votes are locked, there is no way to predict the outcome.
The hog lobby, meanwhile, has been working to stack the deck. Along with consolidating Republican support, they have summoned hundreds of growers and industry boosters from down east, busing them in and packing them into the visitors’ mezzanine above the House floor. When Mona and Mark Doby climb the stairs, looking for seats, they are astonished to find the gallery full. They try every entrance until, at last, a friendly security officer recognizes them and carves out a space among the Smithfield faithful. Glancing around, they feel the weight of the stares, the pent-up energy and fear. It isn’t obvious that these folks understand the substance of Jimmy Dixon’s bill. But they surely comprehend the significance of the occasion.
For both sides, the stakes are existential.
At last, the hour arrives, and the House members take their seats. Although Mona and Mark are alone in the audience, their colleagues back at Wallace & Graham are tuned in either to the television broadcast or the Internet audio feed. Across the country, Mike Kaeske and Lisa Blue are listening in, too. Everyone’s nerves are frayed. They have invested years in this litigation. They have built a case that could actually go the distance. Yet in a single night, with a single vote, Smithfield’s allies in the statehouse could take it away from them.
The legislators rise for the prayer and the Pledge of Allegiance, and then the House Speaker, Tim Moore, assumes the podium and the session gets underway. When the time comes to debate Jimmy Dixon’s bill, the representative from Duplin stands beside his desk and takes up the microphone. His crown of alabaster hair is perfectly coiffed, his reading glasses are perched on his nose, and he’s dressed in his Sunday best—a dapper navy suit paired with an understated yellow tie and augmented by two lapel pins that signal his patriotism and state pride.
“Colleagues,” he begins, “this has been one of the bills that gives us all some degree of anxiety.” His speech is extemporaneous and more than a little meandering, but his message is aimed at those in his own party who are thinking about defecting. He’s not a lawyer, he says, and this is not a courtroom. In putting forward his bill, he’s relying only on common sense. North Carolina’s hardworking farm families are in peril. The General Assembly must act to protect them, even if that action has an effect on pending cases. Sure, there’s a debate about whether the retroactivity provision is legal. But he’s not interested in the legalities. He’s read more than he ever wants to read about nuisance lawsuits around the country. He’ll let the lawyers explain why the bill can apply to the lawsuits pending in Judge Britt’s courtroom.
Instead, he talks about his own farm. “I have been permitted to dispose of my waste in very specified manner, and I want to testify to every single one of you in this chamber, these allegations are at best exaggerations, and at worst outright lies. When you talk about spraying effluent in people’s houses and on their cars, that does not exist. I’ve been down there. I’ve lived it.” As if to cement his veracity, he invokes his family. “My children and grandchildren have played around the lagoons. And we’ve sprayed our effluent properly.”
Dixon takes another swipe at the plaintiffs, says they’re being “prostituted for money,” despite being “wonderful, wonderful people.” The way he repeats the word feels like a psychological tic, a fleeting rebellion by his superego against the darker instincts of his id. But that’s all the kindness he’s willing to extend them. He attacks their lawyers, talks about the “Learjets” they are flying in from Texas to profit off of North Carolina’s citizens. He concedes that a hog farm is no flower garden, but offers an invocation in its defense: “Every single one of us should, on a regular basis, get down on our knees and thank our Heavenly Father that there are people who are willing to put up with the circumstances of production so that we can enjoy the benefits of consumption.”
For his closing, Dixon slips into grandiloquence. “Ladies and gentlemen, there is more at stake than you realize. There are enemies to agriculture, especially livestock agriculture. Extreme environmentalists and animal rights people have joined together and become allies to those who would take advantage monetarily of the very folks they propose to represent.” He pauses, surveying the House floor. “Ladies and gentlemen, please vote for this bill.”
After Jimmy Dixon’s bombast, his co-sponsor, Ted Davis, sounds like a prude. He tries on a variety of arguments, as if modeling on the runway, then settles on this one: Judge Britt needs the legislature to clarify the damages that are available in North Carolina nuisance suits. The old judge said as much way back when he overruled Smithfield’s motion to dismiss. “The fact that he could not make that decision meant that the cases were put on hold,” says Davis, “and they’re still on hold.” In effect, Judge Britt needs the help of the General Assembly.
As soon as Davis yields the floor, Darren Jackson, a Democratic lawyer from Wake County, blows this argument into the next life. He holds up a docket sheet from the federal court, showing that the cases are not on hold. The parties have been litigating them in earnest for the last two years. Other members join him in inveighing against Jimmy Dixon’s bill. Some defend the ancien régime—the common law of nuisance tracing its origins to William Aldred’s case and the King’s Bench. Some focus entirely on the “pending litigation” language.
Eventually, John Blust stands up and introduces Amendment One. His gray suit blends naturally with his silvering hair and offers a striking contrast to his Carolina blue tie.
“Farmers are a very romantic, sympathetic group of figures,” he opines, “but we all know that much of the agriculture today—because of economies of scale and equipment—is not your family farmer. These are giant hog operations that have environmental consequences.”
A disgruntled Jimmy Dixon interrupts him. “How many of these farms have you been on in your life?”
Looking flustered, Blust concedes that he’s never been on a hog farm before. But he’s smelled them. Then he realizes that Dixon has lured him down a rabbit hole. The bill isn’t about the farms or the farmers. It’s about the property rights of North Carolina landowners.
Dixon interrupts him a second time, asking whether Blust understands the concept of “integrated livestock operations.” The subtext is plain. This isn’t Blust’s area of expertise. He should leave the regulation of agriculture to industry men. Blust, however, is ready for him. He’s not going to yield to any more questions. Dixon is wasting time on trifles.
“I have other objections,” explains Blust, “but to do away with the most onerous part of this bill—that we are involving ourselves, as a legislature, in picking a winner in a lawsuit—I would like, Mr. Speaker, to be recognized to send forward an amendment.”
Tim Moore admits the amendment, and the clerk reads it into the record. The language is formalistic, but the meaning is clear. Even if the General Assembly adopts HB467, thereby torching four centuries of legal precedent, the newly circumscribed law of nuisance won’t apply retroactively. In Judge Britt’s courtroom, Smithfield will be on its own.
As soon as Blust cedes the floor, Jimmy Dixon claims it. The Duplin representative has a saying that he’s shared around the General Assembly, a maxim of public speaking that he honors more in word than in deed: “Be sincere, be brief, and be seated.” When it comes to Amendment One, he respects his own creed. “Members,” he says, staring down the Republicans in the back bench, “it’s very obvious what this would do. Vote red. Vote no on the amendment.”
Over the next few minutes, a slew of other members, including prominent Republicans, give Dixon’s position an unapologetic thrashing. A former state court judge compares it to Roy Williams, the legendary UNC basketball coach, asking the NCAA to move the three-point line forward a few feet during the national championship to end a shooting drought. In an effort to save face, Jimmy Dixon tosses his maxim about brevity in the dumpster and rises a third time.
“Let me tell you,” he says, peering over his glasses, “the North Carolina Chamber of Commerce, the North Carolina Farm Bureau, the North Carolina Pork Council, the North Carolina Farm Families, the North Carolina Poultry Federation support this bill exactly like it is. Let’s give a little bit of leave to the folks who feed us on a daily basis.”
When, at last, the Speaker puts the question to the House, all sound in the chamber dies away. For Mona and Mark in the mezzanine—and for the rest of their team tuning in remotely—the silence is as taut as a piano string. The scene is a kind of public reckoning. Before the plaintiffs are permitted to tell their story to a jury, they must survive the judgment of the State of North Carolina, as expressed by a body politic that has never been more beholden to corporate power than it is today. Although the hog barons are not in the room, they are present by proxy, their influence etched into the pensive faces of hundreds of growers sitting and standing in the gallery, their will effectuated by their political handmaidens from down east.
This is Jimmy Dixon’s shining moment. Can he rescue Smithfield from the gavel?
All eyes turn toward the scoreboard suspended above the House floor. The names of the members are stenciled in white on a black background, like flights on an airport display. The silence extends, seconds piling upon one another, until the Speaker says: “The clerk will lock the machine and record the vote.” It is then that color suddenly appears on the scoreboard. The white letters flash to green or red, depending on each member’s vote.
Of the 120 members, five are missing from the chamber, which alters the math. A majority is now 58, not 61. Ordinarily, the Speaker, Tim Moore, abstains from voting, unless he is required to break a tie. Moore ignores this unwritten rule and votes with Jimmy Dixon. But even his support isn’t enough to hand Smithfield the win.
The final tally is breathtakingly narrow: 59 to 56.
If Mona and Mark were anywhere other than in the House chamber, they would exult with a cheer. As it is, they release the tension in a hearty exhale. Despite all reports of its demise, democracy is still alive.
Then again, so is HB467.
The amendment’s passage has simply excised the most controversial portion of the bill. The bill itself is still up for debate. By now, however, the result feels like a fait accompli. Only two members rise to comment—Garland Pierce, the Black preacher from Scotland County, and Pat McElraft, the Republican from Emerald Isle, who contends that whatever unpleasant odors may issue from Smithfield’s hog farms, it is the “smell of freedom.” As if to add an exclamation point, she raises her eyes toward the gallery and intones, “God bless you, farmers.”
Unburdened by the retroactivity provision, the bill cruises to an easy victory. It meets a similar reception in the state Senate, where Brent Jackson shepherds it to passage by a wide margin, despite two weeks of impassioned lobbying by Mona and Bill and Skip Stam.
In North Carolina, now, the common law of nuisance is mostly a dead letter, at least when it comes to industrial farming and forestry operations. But the failure of Smithfield’s elected cabal to poison the cases in Judge Britt’s courtroom means that the company built by Wendell Murphy and Joe Luter and now owned by Wan Long has no choice.
To win, it must defeat Mike Kaeske.