Plaintiffs in the ongoing civil suit over the creation of a water cooperative seeking to supplant Cullman County as the owner of the county water department struck back at defendants’ request to the state Supreme Court for an emergency stay of a circuit judge’s injunction order, calling it unnecessary.

In a brief filed Wednesday, attorneys representing the six county residents attached as plaintiffs to the suit suggested defense attorneys for the South Cumberland Cooperative District (SCCD) and Governmental Utility Services Corporation of Cullman County (GUSC) had failed to demonstrate their clients face an emergency for which immediate intervention from the high court is needed.

The suit itself stems from a county commission meeting in late April that saw the formation of the two utilities and the transfer of the county’s $30 million water department assets to the SCCD. The two associate county commissioners who approved the utilities, Doug Williams and Wayne Willingham, are also defendants in the case.

After a hearing in late May on whether sufficient evidence exists to admit the plaintiffs’ charge that Willams and Willingham  violated the Alabama Open Meetings Act, Circuit Judge Don Hardeman issued a preliminary injunction instructing the SCCD to return the department’s assets to the county until the suit had been resolved. The defendants subsequently appealed that ruling to the Supreme Court and filed an emergency motion to stay the order both with the circuit and the high court.

The Supreme Court remanded that request to the circuit court for a second hearing late last month. Hardeman reaffirmed his original injunction order after the hearing, and again instructed the SCCD to relinquish control of the department to the county. The defense immediately responded by re-filing their request for an emergency stay before the Supreme Court, citing a number of procedural and jurisdictional issues.

The plaintiffs’ response, submitted to the high court Wednesday, addresses those issues and reminds the court that, in a case involving an appeal, the burden of proof rests with the defendants in asking the high court to overturn a circuit court decision that only strengthened after it was first contested. The defendants’ behavior, as well as their complicity in moving the timeline for the latest scheduled hearing forward by two weeks, invalidates their assertion that an emergency stay is needed.

“There is no emergency,” the brief flatly states. “The actions of the appellants [The SCCD, et. al.] and their attorneys, who agreed to delay consideration of their [original] motion for a stay and then did not appear at the hearing of that same motion, show that there is no emergency necessitating a stay pending appeal [before the Supreme Court].”

The brief further asserts that “[T]he appellants failed to prove that a stay is necessary,” arguing that the SCCD’s representation “appear[s] to misunderstand the burden of proof regarding a motion for an emergency stay in this Court...Upon being given the opportunity to present facts to the trial [circuit] court showing the need for a stay, counsel...presented only one witness, Cullman County Water Department Manager David Bussman...who added nothing.

“...In contrast,” the plaintiffs continue, “The Appellees [plaintiffs] presented ample evidence that a stay is unnecessary” by calling three expert witnesses to testify that the SCCD had no basis for any of its stated reasons not to comply with Judge Hardeman’s injunction order and return the water department assets to the county commission.

“The entire argument of the Appellants is based on various alleged shortcomings they perceive in the Appellees’’ [plaintiffs’] case on the merits that are better heard and argued on appeal, not in a motion for a stay.”

Among several other matters, those “alleged shortcomings” include SCCD attorney’s repeated assertions that the plaintiffs do not have standing to bring most of the accusations made in the suit—which plaintiffs counter by citing numerous precedent cases involving taxpayers similar to the six county residents acting as plaintiffs in this case, who “...are often the only ones who can sue to challenge expenditures of state funds.”

In the timeline of the appeals process before the Supreme Court, a decision on the SCCD’s motion for an emergency stay will come much sooner than will a ruling on the defendants’’ overall appeal to overturn Judge Hardeman’s injunction order. Until the appeal itself is decided, the original lawsuit—the one filed in circuit court—is at a standstill. The appeals timeline, said plaintiffs’ attorney Todd McLeroy last week, is at the discretion of the Supreme Court and could take several months.

 

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