A March ruling in Jefferson County Circuit Court could determine whether the Birmingham City Council votes on taking over the Birmingham Water Works (BWWB) or if the utility has succeeded in blocking that action.

If the BWWB succeeds, that would be the third time the utility has thwarted the same petition since 2002.

Late last year, former BWWB meter reader Fred Randall, along with BWWB customers David Russell and James King, filed a petition with Jefferson County Probate Judge James Naftel for certification to go before the Birmingham City Council for a vote.

According to Alabama’s Mayor-Council Act of 1955, a petition can be brought before city council if 10% of the city’s qualified voters sign the petition. But first the petition must be brought before the local probate court to verify that it has the necessary percentage of signatures.

The petitioners’ legal representative, Birmingham lawyer and former Birmingham City Council President Johnathan Austin, said the petition surpassed this percentage after it received over 18,000 signatures. 18,000 sits at about 9% of Birmingham’s total population of roughly 200,000 according to U.S. Census data.

Austin did not respond to requests for comment on the actual size of Birmingham’s qualified voter pool or how he calculated the percentage of signatures he said the petitioner’s got.

On Jan. 9 the BWWB filed a temporary restraining order against Naftel to prevent him from certifying the number of signatures while they pursued an injunction to permanently prevent Naftel from pursuing any further action with the petition, according to court records.

In the attached complaint BWWB lawyer Mark Parnell said that the proposed ordinance was “unlawful” and that it would cause “irreparable damage” to the utility.

Judge Carol Smitherman was originally assigned to the case but removed herself. Judge Pat Ballard took over and granted the temporary restraining order on Jan. 12.

Later that day Ballard also set a court date of Jan. 23 to rule on BWWB’s injunction and later granted the petitioners’ motion to intervene so that they could pursue future action with their petition.

“There’s no one right now representing that 10% of the electorate,” Austin said earlier. “The citizens right now are not being represented in this. My clients, on behalf of the 10%, are wishing to intervene and become a party [in the case] so they can put their position of why they should be involved and what is their argument.”

“…Really what they want is this ordinance to be brought before the Birmingham City Council and for the council to vote on this ordinance…The citizens have certainly gathered the requisite amount of signatures,” he said. “So, if the voters want this and this is what they’ve chosen… They should be heard and not silenced.”

At the hearing on Jan. 23rd Austin’s clients asked that if Ballard does grant the permanent injunction that he rule in a way that would not prohibit future attempts to bring the petition to city council with enough signatures.

Ballard scheduled a final hearing for BWWB’s injunction on Mar. 10.

This is not the first time Randall and others have attempted to change governance of the utility through a city council vote.

In 2002, Randall and Russell attempted to file an identical petition with former Jefferson County Probate Judge Michael Bolin. In that case too, BWWB filed for a temporary restraining order and a permanent injunction to prevent the petition from being brought before city council.

According to court records, BWWB said at that time that what the petition proposed was beyond the scope of city authority and overly vague.

Former Jefferson County Circuit Court Judge Tennant Smallwood granted the restraining order and the injunction in early 2003 and ruled that the petition was void because it “unlawfully and unreasonably delegate[d] the power of the City.”

Just three years later Randall, Russell, and King attempted to file another petition with former Jefferson County Probate Judge Alan King.

BWWB once again filed for a temporary restraining order and permanent injunction that they were granted by former Jefferson County Circuit Court Judge William Noble in July 2007.

Earlier this month BWWB referenced the previous cases and said Naftel and future probate judges are bound by past court rulings.

“The Proposed Ordinance by a group of Birmingham citizens is the same as two prior proposed ordinances that have been ruled illegal and struck down by the Circuit Court and the Alabama Supreme Court,” said BWWB spokesman Rick Jackson in a press release Jan. 10. “The Water Works Board is a separate and distinct entity from the City of Birmingham and the Alabama Supreme Court has held that it cannot be controlled or dissolved by outside third parties. As such, the Petition and Proposed Ordinance are invalid and cannot legally be submitted to the Council or the public for vote and any such process would be both an unlawful use of taxpayer money as well as a waste of public resources.”

Austin said he anticipated that the court would rule in favor of BWWB for the restraining order and injunction but stressed the importance of leaving future opportunities open.

“This ordinance had over 18,000 supporters and those are 18,000 electors and registered voters,” said Austin. “So, if the court rules that it was done improperly or that it was not consistent with state law then it would only be narrowly tailored to this case.”

City of Birmingham Public Information Officer Kimberly Garner said the city council had not been made aware of this petition in any formal setting.

BWWB has been the subject of longtime public scrutiny that came to a head last year as customers were overbilled due to mass meter reading estimations.

Randall, Russell, and King did not respond to requests for comment.

A spokesperson for the council released a joint statement in response to questions about the case: “The Birmingham City Council has not been involved in this process in any way. This situation is currently in litigation and it would be improper for the Council to comment further at this time.”