ELECTRONICALLY FILED

3/15/2010 12:20 PM
CV-2009-900019.00
CIRCUIT COURT OF
LOWNDES COUNTY, ALABAMA
RUBY JONES, CLERK
IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA

CORNERSTONE COMMUNITY )
OUTREACH, INC. et al. )
)
Plaintiffs, )
) Case No.: CV-09-900019
v. )
)
BOB RILEY, GOVERNOR, STATE OF )
ALABAMA, et al., )
)
The Governmental Parties. )

STATE OF ALABAMA, LOWNDES )

COUNTY, )
)
Petitioner, )
)
v. ) Case No.: CV-09-900027
)
$549,981.28 in U.S. Currency, et al., )
)
Respondents. )

MOTION TO STAY

Come now the State of Alabama, Petitioner in CV-09-27, and Governor Bob Riley,

David Barber, Emory Folmar, and Christopher Murphy, Defendants in CV-09-19 (hereinafter

collectively referred to as “the Governmental Parties”), by and through the undersigned counsel

of record, and move the Court to stay its Order of March 8, 2010 (“the Order”) pending the

resolution of the Governmental Parties’ petition for a writ of mandamus with the Alabama

Supreme Court.

I. STANDARD APPLICABLE TO THIS MOTION

To obtain a stay, four criteria are relevant:

 (1) whether the movant has made a showing of likelihood of success on the
merits, (2) whether the movant has made a showing of irreparable injury if the
stay is not granted, (3) whether the granting of the stay would substantially harm
the other parties, and (4) whether the granting of the stay would serve the public
interest.

Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982) (citations omitted). However, “on motions for

stay pending appeal the movant need not always show a ‘probability’ of success on the merits;

instead, the movant need only present a substantial case on the merits when a serious legal

question is involved and show that the balance of the equities weighs heavily in favor of granting

the stay.” Id. (citations and quotation marks omitted).

II. ARGUMENT

The Court should stay its Order. The Order raises substantial separation-of-powers issues

and directs the Attorney General to perform an act he has discretion not to perform. If allowed

to stand, the Order could provoke a conflict within the executive branch where there currently is

none. There is a substantial argument that the court erred when it issued the Order, and it would

be in the public interest to stay the Order’s effect until the Supreme Court has issued a definitive

ruling on the matter.

As shown herein, the circumstances here strongly support a stay.

Likelihood of Success on the Merits: As explained in more detail in the Governmental

Parties’ Petition for a Writ of Mandamus, which is attached hereto as Exhibit A, the

Governmental Parties have a strong chance of showing that the Order is erroneous. The

Governmental Parties’ counsel have clear statutory authority to appear here, and their actions do

not intrude on the powers of either the Attorney General or the Lowndes County District

Attorney. (See Exh. A at 16-22). Moreover, by directing the Governor and Attorney General to

 
exercise their discretion at the Court’s bidding, the Court’s Order violates the Alabama

Constitution’s separation-of-powers principle. (Id. at 22-25). Finally, even if there were a

justiciable conflict between the Governor and the Attorney General here, the Governor would

have the constitutional authority to direct the litigation of this case. (Id. at 26-29). For these

reasons, the Governmental Parties have a high probability of success on their mandamus petition.

Irreparable Harm and the Public Interest: Moreover, the Governmental Parties and the

general public will be irreparably harmed if the Order is not stayed while the Supreme Court

resolves these issues. As of now, there is no conflict between the Attorney General and the

Governor: the Attorney General has allowed the Task Force Special Prosecutors to proceed and

has not intervened in or superintended this case. (Exh. A 19–21, 25–26.) By purporting to force

the Attorney General to intervene, the Order risks creating the executive-branch conflict that it

has attempted to avert. The Order also takes the unprecedented step of ordering the Attorney

General to superintend a case he has decided not to superintend. It would be in the public

interest to avoid both of those outcomes, at least until the Supreme Court has resolved these

questions.

Harm to the Nonmovant: Finally, a stay would not substantially harm Cornerstone or

FTV. The State is in possession of the disputed machines pursuant to a search and seizure by

agents of the Alabama Alcoholic Beverages Commission and Alabama Bureau of

Investigation—two agencies of statewide jurisdiction whose actions the Order does not call into

question. Moreover, it is the Governmental Parties’ understanding that as of now, the White Hall

Entertainment Center has been shut down. Those things would presumably not change before

the Attorney General’s court-ordered appearance, and any additional delay that would be

required before the Supreme Court’s ruling would not cause “substantial” prejudice to

 
Cornerstone and FTV, particularly in light of the fact that the Governmental Parties will be

asking the Supreme Court to consider their mandamus petition on an expedited basis.

III. CONCLUSION

For these reasons, the Court should stay its Order of March 8, 2010 pending a ruling by

the Alabama Supreme Court on the petition for writ of mandamus the Governmental Parties have

filed today. The Attorney General’s deadline to respond to the Order is next Monday, and if this

Court denies the Governmental Parties’ motion for a stay, the Governmental Parties plan to ask

the Supreme Court to stay the Order. Accordingly, the Governmental Parties respectfully

request that the Court issue a ruling on this motion by 12:00 noon on Tuesday, March 16, 2010.

Respectfully submitted,

/s John M. Tyson, Jr.

John M. Tyson, Jr.

Martha Tierney
Edgar Greene
OFFICE OF GOVERNOR BOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
TEL: (205) 531-3375
FAX: (205) 574-5400
E-mail: mtierney@bellsouth.net

Attorneys for the State of Alabama, Governor Bob

Riley, David Barber, Emory Folmar, and
Christopher Murphy, as Special Prosecutors for the
Governor’s Task Force on Illegal Gambling

/s Henry Reagan

Henry Theodore Reagan II

OFFICE OF GOVERNOR BOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(334) 242-7120

 
 (334) 242-2335 (fax)
Sonny.Reagan@governor.alabama.gov

Attorney for Governor Bob Riley, David Barber, Emory

Folmar, and Christopher Murphy

 
 CERTIFICATE OF SERVICE

I hereby certify that on March 15, 2010, I filed the foregoing via Alafile, which will send
a copy to all counsel of record who are Alafile registrants, and mailed a copy via US Mail to all
counsel of record who are nonregistrants.

                s/ Martha S. Tierney
OF COUNSEL