In what is at least a momentary victory for defendants in a lawsuit over the legitimacy of two water utility entities the Cullman County Commission formed earlier this year, the Supreme Court of Alabama granted a request for an emergency stay of a circuit judge’s injunction that originally had instructed the defendants to return custody of the county water department to the county commission until the lawsuit itself has been resolved.

In granting the emergency request, the high court has essentially allowed the South Cumberland Cooperative District (SCCD) to maintain ownership of the department until the civil suit runs its course.

The three-member Cullman County Commission voted to give the SCCD control of the department, its employees and its assets—valued at more than $30 million—on April 27 of this year, at the same time it elected to form a three-member intermediary utility board—the Governmental Utility Services Corporation of Cullman County (GUSC) and gave its members overlapping duties on the five-member SCCD board.

Associate commissioners Doug Williams and Wayne Willingham voted in favor of the boards’ formation; commission chairman James Graves opposed the manner in which the new boards had been conceived, and initially joined with six other county residents in bringing the lawsuit to recover the department on the county’s behalf.

Allegations that the two associate commissioners had violated the Alabama Open Meetings Act by conspiring to orchestrate the events of the April 27 commission meeting led to a hearing on the matter. From the hearing came Circuit Judge Don Hardeman’s preliminary injunction, which itself was promptly appealed to the Supreme Court. Shortly thereafter, the defendants filed an emergency motion to stay that portion of the injunction that instructed the SCCD to return the water department to county control. The high court kicked that request back to circuit court, ordering another hearing before ruling on the matter. After that hearing, Hardeman reaffirmed his initial decision, ordering the SCCD to return the department to the county once again.

Although Thursday’s Supreme Court order forestalls that decision, plaintiffs attorneys were quick to point out that the high court gave no opinion on the merits of the case in arriving at its decision.

“The Supreme Court did not reject the merits of Judge Hardeman’s order or dispute any of the findings he made after two evidentiary hearings,” said attorneys for Knight, Griffith, McKenzie, Knight & McLeroy of Cullman in a prepared statement. “This procedural maneuver is a stalling tactic by a bunch of has-been politicians and lame ducks and their high-dollar Birmingham lawyers who seem hell bent on wasting the people of Cullman County’s time and taxpayer money instead of facing the fact that they got caught trying to give away our public water system and now won’t take their hands out of the cookie jar.”

Phone calls to two of the defendants were not returned by deadline for this article.

The Supreme Court’s one-page order did not offer an opinion on either side’s position, but simply indicated the motion had been granted. It did, however, instruct the defendants to post a supersedeas bond—that is, a surety the SCCD and its co-defendants must offer against possible damages or jeopardy of the assets in question—until the appeal has been resolved.

For the SCCD, that could prove tricky. The utility has no assets or cash reserves of its own, save for the real and personal water utility assets that formerly belonged to the county. The circuit court must hold a hearing soon to set a bond amount, which is typically some percentage of the worth of the assets under contention in a lawsuit. Unless that amount proves to be very small indeed, the utility may face a situation in which it must offer those assets as collateral to a bonding agency.

In the lawsuit’s larger timeline, Thursday’s order resolves little. The civil suit, filed May 7 in circuit court, will remain on hold until the Supreme Court rules on the defendants’ overall appeal of the May 28 preliminary injunction. The appeal is still pending before the Supreme Court.



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