CULLMAN — The emergency appeals process started afresh for defendants in a civil suit over custody of Cullman County’s water system this past week, with attorneys filing a renewed emergency motion to stay a circuit court injunction against their clients.

The motion comes in the wake of a reaffirmation of an injunction issued in late May against the defendants—the Governmental Utility Services Corporation of Cullman County (GUSC), the South Cumberland Cooperative District (SCCD) and the Cullman County Commission—by Circuit Judge Don Hardeman. At the request of the Alabama Supreme Court, whom the defendants had also requested for an emergency stay, Hardeman held a hearing on the matter late last month and enforced the terms of his original ruling.

That order instructed the SCCD to deed back to Cullman County ownership of the county’s $30 million water system infrastructure and property rights, and—along with the GUSC—to cease any corporate action, including meeting to deliberate on any water department business, until the civil lawsuit has been decided.

In practical terms, the filing affords the SCCD more time in which to delay acting on the Circuit Court order to deed the department’s assets back to the county commission. That order does not take effect so long as the defendants have an emergency motion pending in the Supreme Court.

As well as citing a number of points made in the runup to the hearing which led to their motion’s denial, defense attorneys emphasized an additional argument in their emergency appeal to the high court: that only the governor or state attorney general has authority to reassign ownership of public property.

 That argument invokes Title 6, section 5-4 (a) of the Code of Alabama, which deals with recovery of public funds or property as such proceedings pertain to civil practice.

“...[T]he plaintiffs are seeking the recovery and return of County property, which only the State of Alabama has standing to pursue,” wrote attorneys for Birmingham-based Johnston Barton Proctor & Rose, which is representing all defendants on the high court appeal. “This Court [the Supreme Court of Alabama] has held that such actions are placed ‘solely in the hands of’ the Governor and Attorney General...Private citizens, such as the plaintiffs, do not have standing to pursue such actions.”

Plaintiff attorney Todd McLeroy, of Cullman-based Knight Griffith McKenzie Knight & McLeroy, said his firm would ready a response to the defendants’ claims before a filing deadline this Wednesday. Alabama law, he said, does allow for parties other than the state to seek recourse for the return of public property found to have been wrongfully manipulated.

“The only new argument they make in this motion is that they say only the governor has the right to recover property taken from a county,” McLeroy said. “That argument has never come up in our circuit court. They cite a statute to base their argument on. We’ll respond and say that it’s not the only way—taxpayers have the right to try to recover public property.”

Until the emergency motion—as well as the larger process of the defendants’ injunction appeal—runs its course in the Supreme Court, the civil lawsuit that launched the entire process of litigation over the water system will remain on hold. McLeroy said the high court operates on a separate timeline from circuit court, but that a definite ruling on the appeal is certain, although it may take some time.

“It could be within a few weeks that they [the Supreme Court] rule on the emergency motion to stay,” he explained. “But that is separate from the appeal the defendants have made to the Supreme Court on the overall preliminary injunction issued in May. A ruling on that decision might not come until the Fall, or even Winter.”

The original lawsuit was filed in the wake of an April county commission meeting that saw the formation of the SCCD and GUSC, along with the transfer of the water department to the custody of the SCCD. Within days, commission chairman James Graves and six county residents brought the suit against the two entities, as well as associate commissioner Doug Williams and Wayne Willingham, claiming—among other things—that the two commissioners had violated open meetings laws in planning the formation of the two utility boards.

Hardeman’s original injunction order came after a hearing on the open meetings allegation. Plaintiffs attorneys have said the other charges alleged in the suit will be presented at a later time, should the suit continue after the Supreme Court rules on the defendants’ appeal.



‰Benjamin Bullard can be reached by e-mail at bbullard@cullmantimes.com or by telephone at 734-2131 ext. 270.