§37-14-38. Validation procedure; authorization for validation of provisions of article.

In order to foster and encourage the underlying policies of this article and to assure that sales and purchases of distribution facilities, and other transactions and actions authorized or allowed by this article may be conducted in good faith with a knowledge of the validity of the provisions hereof, and further, to assure that irrevocable commitments are not made in the implementation of the provisions of this article without the assurance of their legality and validity, the following judicial review process is hereby authorized and it is declared to be the legislative intent that the provisions of this statute be judicially reviewed and validated pursuant to the procedure set forth herein and that the circuit court enter a judgment in accordance with the procedure set forth herein.

(1) FILING OF COMPLAINT FOR DETERMINATION AS TO LEGALITY OF PROVISIONS OF ARTICLE. - At any time subsequent to May 20, 1985, an affected secondary electric supplier whose distribution facilities are subject to the provisions of this article and whose facilities may be purchased pursuant to this article by a primary electric supplier may, in its discretion before the closing of such purchase, seek judicial determination of the legality and validity of the provisions of this article. Such complaint shall be filed in the Circuit Court of Montgomery County, Alabama which shall have exclusive venue for the determination of all questions of the legality and validity of the provisions of this article. The filing of any complaint for validation shall stay the dates established for the closing of all sales of facilities pursuant to the provisions of this article until, with respect to each situation in which intent to exercise the option to purchase has been or is thereafter announced, a date is established by the mutual agreement of the affected primary and secondary electric supplier, which date shall not be in excess of 90 days after the final resolution of the action to determine the legality and validity of the provisions of this article, including any appeal therefrom. It is the intention of the legislature that implementation of the provisions set forth in this article shall not be stayed, other than as set forth above, during the pendency of any such litigation because of the need to eliminate, as soon as possible, duplication of electric distribution facilities.

(2) CONTENTS OF COMPLAINT; ORDER AND NOTICE OF HEARING TO SHOW CAUSE.

a. The complaint by appropriate allegations, references and/or exhibits shall briefly state the following: The authority for the purchase and sale of distribution facilities and other transactions and restrictions under this article; the nature of any municipal franchise which will be affected; a general description of restrictions imposed by this article; and the impact which such restrictions and sale shall have on the parties and the public.

b. The judge of said court shall, upon the filing and presentation of said complaint, issue an order against the citizens of the state, all municipalities and governmental units and other defendants requiring them to show cause, at a time and place to be designated in said order, which time shall be not less than 35 days nor more than 56 days after the issuance of such order, and which place shall be within Montgomery County, why said purchase and sales and the other transactions and restrictions and all other proceedings under this article should not be validated and confirmed. Notice of such order shall be given in accordance with c, d and e below.

c. The Attorney General of the State of Alabama shall be the designated representative of the citizens of the State of Alabama and shall appear on their behalf for all purposes in any proceeding brought pursuant to this section.

d. Prior to the hearing of said cause, the clerk of said court shall publish, in a newspaper of general circulation published in Montgomery County, once each week for at least three weeks before the hearing, the first publication which would be at least 21 days before such hearing, a notice addressed to the citizens of the State of Alabama and all municipalities and governmental units requiring them, at the time and place specified in the order providing for the hearing of such case, to show cause, if any there be, why said purchase and sale or other transaction and restriction that may be referred to in the complaint should not be validated and confirmed. In addition, the clerk of said court shall also publish notice to the citizens of the state and all municipalities and governmental units in newspapers of general circulation customarily published not less often than five days during each calendar week in the Cities of Andalusia, Birmingham, Dothan, Florence, Gadsden, Huntsville, Mobile, Selma and Tuscaloosa. By the publication of such notice, all citizens of the state, all municipalities and governmental units shall become parties defendant to such proceedings, and the court shall have jurisdiction of them the same as if each of them were named individually as party defendants in said complaint and personally served with process.

e. In addition to the publication and notice set forth in paragraph d, the clerk of the Circuit Court in Montgomery County shall also cause a summons and complaint to be served upon the Attorney General of the State of Alabama as representative of all citizens of the State of Alabama and upon all other parties named as defendants in the action.

f. The plaintiff shall certify to the court, in writing, with an attached list, that it has mailed a copy, by certified mail, return receipt requested, of the complaint filed in the action to each other electric supplier in the state, as defined in this article. Said notice to said electric suppliers shall inform them of the time and place of the hearing and shall contain a copy of the complaint filed herein. The notice required by this paragraph shall be mailed not less than 21 days prior to the date set for the hearing.

g. Each electric supplier, municipality and governmental unit which receives notice pursuant to the provisions set forth in d, e and f above, or which receives notice in any manner whatsoever of this action, may petition the court, as a matter of right, to intervene in said action and to participate in the hearing provided for in subdivision (3) of this section.

h. The failure of any electric supplier, municipality and/or governmental unit having actual or constructive notice of the proceeding to exercise the right to intervene and participate in the hearing shall be deemed a waiver of any right such electric supplier, municipality or governmental unit may have to participate and to challenge, contest or otherwise question the validity of any of the provisions of this article.

(3) HEARING AND ENTRY OF JUDGMENT; APPEALS FROM JUDGMENT OF CIRCUIT COURT. - At the time and place designated in said order, the judge of said circuit court shall proceed to hear and determine all questions of law and of fact in said civil action, and he shall make such order, or orders, as to the proceedings in said civil action as will best preserve and protect the interests of all parties and to enable him to enter a final judgment with the least possible delay. The final judgment shall find the facts specially and shall state separately the judge's conclusions with regard to any and all legal issues raised with regard to the legality and validity of the provisions of this article and shall state the judge's conclusions of law thereon. Any citizen of the state may appear in such proceedings, either personally or by attorney, and any party thereto, whether plaintiff, defendant or intervenor, dissatisfied with the judgment of the court may appeal therefrom to the Supreme Court of Alabama in accordance with the Alabama Rules of Appellate Procedure. Such appeal shall take priority in the supreme court over all other cases therein pending, except petitions for writs of habeas corpus.

(4) WHEN JUDGMENT OF CIRCUIT COURT FINAL AND CONCLUSIVE AS TO VALIDITY OF PURCHASE, SALE AND OTHER TRANSACTIONS OR RESTRICTIONS UNDER ARTICLE. - If the circuit court shall enter a judgment validating the provisions of this article and no appeal shall be taken within the time prescribed within the Alabama Rules of Appellate Procedure; or, if an appeal is taken and the judgment validating the provisions of this article shall be affirmed by the Supreme Court; or, if the circuit court shall render a judgment refusing to validate the provisions of this article, and on appeal such judgment shall be reversed by the Supreme Court (in which case the supreme court shall issue its mandate to the circuit court requiring it to enter a judgment validating the provisions of this article), the judgment of the circuit court validating the provisions of this article shall be forever conclusive against all citizens of the state, electric suppliers, municipalities and other governmental units having actual or constructive notice of the proceedings as to the validity of the provisions of this article.

(5) COSTS OF PROCEEDINGS. - The court costs in any proceeding brought under this article shall be paid by the electric supplier commencing the action.

(6) ARTICLE NOT APPLICABLE WHERE THE VALIDITY OF PURCHASE, SALE OR OTHER TRANSACTION IS IN CONTROVERSY IN PENDING ACTIONS OR PROCEEDINGS. - No action shall be commenced challenging the legality or validity of the provisions of the article, or the legality or validity of a purchase and sale transaction or restriction under this article where the legality or validity of the article is in controversy in any prior pending civil action or proceeding in any court or has been determined in any such action. In the event any action is pending in any circuit in the state which raises or challenges the legality or validity of any provision of this article at the time an action is filed under this section, such pending action shall be transferred to the Circuit Court of Montgomery County and shall be consolidated with the action filed pursuant to this section and the consolidated proceeding shall be adjudicated in accordance with the procedures set forth in this article.

(Acts 1985, No. 85-645, p. 983, §9.)