Cole Supreme Court Motion

DOCUMENT 34
ELECTRONICALLY FILED
1/10/2023 11:56 AM
47-CV-2022-901282.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK
IN THE CIRCUIT COURT
OF MADISON COUNTY, ALABAMA
ELIJAH BOYD, )
)
Plaintiff/Contestant, )
)
vs. ) Civil Action No. CV-2022-901282
)
DAVID COLE, )
)
Defendant/Contestee. )
MOTION TO STAY PROCEEDINGS PENDING

RULING BY ALABAMA SUPREME COURT
Comes Now Defendant/Contestee David Cole, by and through his counsel of record,
Algert S. Agricola, Jr. and Barbara H. Agricola of Agricola Law, LLC, and pursuant to
Ala.R.App.P. 21(f), moves this Court to stay all further proceedings in this matter pending
the resolution of the issues raised by Defendant/Contestee’s Petition for Writ of Mandamus
now pending in the Alabama Supreme Court. See Exhibit 1 attached hereto. In support of
his motion for stay, Defendant/Contestee Cole shows the following:
1. Defendant/Contestee has a reasonable chance of success on the merits of his
Petition for Writ of Mandamus. Defendant/Contestee Cole asserts there is (1) a clear legal
right in the petitioner to the order sought; (2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4)
properly invoked jurisdiction of the court. Defendant/Contestee incorporates herein by
reference the authorities cited in the attached Petition for Writ of Mandamus in support of
his contentions that the writ of mandamus is due to issued.

DOCUMENT 34
2. Without a stay, Defendant/Contestee will suffer irreparable harm in the form
of orders issued to him by this Court as requested by Plaintiff/Contestant Boyd where this
Court lacks subject-matter jurisdiction to issue any such orders. Defendant/Contestee has
taken the oath of office as a member of the Alabama House of Representatives and is
constitutionally immunized from orders issued by this Court. ALA. CONST., Art. IV, § 51;
Nunn v. Baker, 518 So.2d 711, 713 (Ala. 1987); Buskey v. Amos, 310 So.2d 468 (Ala. 1975);
In re Opinion of the Justices, 47 So.2d 586 (Ala. 1950).
3. Defendant/Contestee Cole has no adequate remedy at law because he cannot
appeal from this Court’s denial of his motion to dismiss for lack of subject-matter
jurisdiction. Further, the filing of a petition for writ of mandamus does not divest this Court
of jurisdiction nor does it have the effect of staying proceedings in this Court. Ex parte
McDaniel, 291 So.3d 847, 855 n.2 (Ala. 2019), citing Ex parte Spencer, 111 So.3d 713, 716
n.1 (Ala. 2012).
4. The hardship imposed on the party opposing the stay by the entry of a stay
would not unreasonably outweigh the benefit to the party seeking the stay. Allowing this
case to proceed in the circuit court with orders entered by the circuit court supervising
discovery conducted pursuant to Ala. Code § 17-16-51, offends ALA. CONST., Art. III, §§ 42
and 43, embodying the doctrine of separation of powers by allowing the judicial branch of
government to encroach upon matters constitutionally assigned exclusively to the legislative
branch of government by ALA. CONST., Art. IV, § 51, violates fundamental constitutional
2
DOCUMENT 34
principles upon which “[a]ll the objects which governments are instituted to accomplish, and
all individual rights, depend principally, if not exclusively, upon the observance and
preservation of this distribution of power.” In re Opinion of the Justices, 47 So.2d 586 (Ala.
1950). On the other hand, allowing a stay simply preserves the status quo while the Alabama
Supreme Court considers the issues.
Wherefore premises considered, Defendant/Contestee Cole submits that his motion
for entry of stay of further proceedings in this matter pending a resolution of his petition for
writ of mandamus is due to be GRANTED.
Respectfully submitted this 10th day of January, 2023.
/s Algert S. Agricola, Jr.

Algert S. Agricola, Jr.
/s Barbara H. Agricola
Barbara H. Agricola
OF COUNSEL:
Agricola Law, LLC

127 South 8th Street
Opelika, AL 36801
334.759.7557 p
334.759.7558 f
al@agricolalaw.com
barbara@agricolalaw.com
www.agricolalaw.com
3
DOCUMENT 34
CERTIFICATE OF SERVICE
I hereby certify that I have electronically filed the foregoing using the AlaFile
electronic filing system which will serve all counsel of record with the same by electronic
mail.
Done this 10th day of January, 2023.
/s Algert S. Agricola, Jr.

Algert S. Agricola, Jr.

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DOCUMENT 34

MOTION TO STAY PROCEEDINGS PENDING

his motion for stay, Defendant/Contestee Cole shows the following:

1. Defendant/Contestee has a reasonable chance of success on the merits of his

properly invoked jurisdiction of the court. Defendant/Contestee incorporates herein by

his contentions that the writ of mandamus is due to issued.

2. Without a stay, Defendant/Contestee will suffer irreparable harm in the form

In re Opinion of the Justices, 47 So.2d 586 (Ala. 1950).

3. Defendant/Contestee Cole has no adequate remedy at law because he cannot

n.1 (Ala. 2012).

government to encroach upon matters constitutionally assigned exclusively to the legislative

Supreme Court considers the issues.

Wherefore premises considered, Defendant/Contestee Cole submits that his motion

writ of mandamus is due to be GRANTED.

Respectfully submitted this 10th day of January, 2023.

/s Algert S. Agricola, Jr.

Agricola Law, LLC

Done this 10th day of January, 2023.

/s Algert S. Agricola, Jr.

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