E-Filed 09/24/2012 @ 05:49:55 PM Honorable Robert Esdale Clerk Of The Court

Case No. _________ TO THE SUPREME COURT OF ALABAMA In re: HOUSTON ECONOMIC DEVELOPMENT ASSOCIATION Petitioner. ______________________________ STATE OF ALABAMA, by and through Attorney General Luther Strange, Petitioner, v. $283,657.68 U.S. CURRENCY, ET Al., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

HOUSTON COUNTY CIRCUIT COURT CASE NO. CV-2012-900266

PETITIONERS MOTION FOR STAY

ERNEST H. HORNSBY ASHTON OTT FARMER, PRICE, HORNSBY & WEATHERFORD, L.L.P. P. O. Drawer 2228 Dothan, AL 36302 (334) 793-2424 ehornsby@fphw-law.com aott@fphw-law.com

WILLIAM C. WHITE, II PARKMAN & WHITE, LLC 1929 Third Avenue North Suite 700 Birmingham, AL 35203 (205) 244-1920 wwhite@parkmanlawfirm.com

Attorneys for Petitioner Houston Economic Development Association

COMES (HEDA)

NOW and

Houston

Economic

Development that this

Association Honorable

respectfully

requests

Court enter an order staying all circuit court proceedings in this matter based upon the following showing of good cause: 1. HEDA is contemporaneously filing a Petition for

Writ of Mandamus (the Petition) that challenges the trial courts denial of a motion to recuse based on appearance of impropriety within the meaning of the Alabama Canons of Judicial Ethics, as construed by this Court. (Rather than

set out a full recitation of the facts and grounds for relief, reference is made to the Petition being filed

simultaneously herewith.) 2. A hearing has been set by the Circuit Court of

Houston County for September 26, 2012 on motions to dismiss filed by HEDA, and other respondents. 3. HEDA filed a motion with the Circuit Court of

Houston County to stay all further proceedings pending the resolution of the mandamus petition being filed with this court, but such motion was denied by an order entered today at 3:29 pm.

4. stay

Alabama appellate courts have previously found a under 2d similar 396, circumstances. Ex parte (in that his fact all

warranted 847

Brooks, mandamus issued

So.

397

(Ala.Crim.App.2002) of trial judge his as as a to

proceeding search

seeking

recusal the be

warrant

upon

contention questioned granted

impartiality witness to

might his own

reasonably signature,

stay

action in the circuit court [to] allow[] the respondents 21 days to answer the allegations in the petition); Ex parte Price, 715 So. 2d 856, 857 (Ala. Crim. App. 1997) (court granting criminal defendants motion to stay the

proceedings in the circuit court until [it] Court ruled on his mandamus petition) 5. Recognizing the inherent difficulties presented

when proceedings continue in the face of an ongoing recusal question, a minority of states place affirmative

restrictions of a trial judge who is faced with a recusal motion from taking further actions in a case. See, e.g.,

Tex .R. Civ. P. 18a(f)(2)(A) (If a motion is filed before evidence has been offered at trial, the respondent judge must take no further action in the case until the motion

has been decided, except for good cause stated in writing or on the record.). 6. In the event this court requests briefing on this petition and subsequently grants the writ directed to Judge J. Michael Conaway any decision made at the September 26, 2012 hearing would be a nullity and subject to being set aside. 7. The interests of justice and judicial economy are

best served by a stay of all further proceedings in this cause pending a ruling on HEDAs petition to this Court. WHEREFORE, Petitioner HEDA respectfully requests this Court enter an in order this staying matter all further a circuit on court HEDAs

proceedings

pending

ruling

Petition for Writ of Mandamus. /s/ Ernest H. Hornsby___________ ERNEST H. HORNSBY (HOR010) ASHTON OTT (HOL080) Attorneys for Petitioner Houston Economic Development Authority OF COUNSEL: FARMER, PRICE, HORNSBY & WEATHERFORD, L.L.P. P. O. Drawer 2228 Dothan, AL 36302 (334) 793-2424 ehornsby@fphw-law.com aott@fphw-law.com
3

/s/ William C. White, II________ WILLIAM C. WHITE, II Attorney for Petitioner Houston Economic Development Authority OF COUNSEL: PARKMAN & WHITE, LLC 1929 Third Avenue North Suite 700 Birmingham, AL 35203 (205) 244-1920 wwhite@parkmanlawfirm.com

CERTIFICATE OF SERVICE I hereby certify that the foregoing has been served electronically on all counsel of record and/or by depositing copies thereof in the United States Mail, properly addressed and postage prepaid, on September 24, 2012: Honorable J. Michael Conaway Circuit Judge Houston County Courthouse P.O. Drawer 6406 Dothan, Alabama 36302 Luther Strange Henry T. Reagan Jess R. Nix Office of the Attorney General 501 Washington Avenue Post Office Box 300152 Montgomery, Alabama 36130-0152 Center Stage Alabama, Inc. 111 E. Main Street Dothan, AL 36301 Lord Abbett c/o CT Corporation 2 North Jackson Street, Suite 605 Montgomery, AL 36104 Nova Gaming c/o CT Corporation 2 North Jackson Street, Suite 605 Montgomery, AL 36104 Imperium Group, LLC 2462 Promwood Loop, Apt. 11 Montgomery, AL 36106 Gateway Gaming, LLC 2229 First Ave. N. Birmingham, AL 35203
5

Fox Gaming, LLC 2055 Boggs Road Duluth, GA 30096 Firefox Systems, LLC 643 Sheridon Place Birmingham, AL 35214 Segway Gaming Systems of Alabama 1575 Industrial Pike Road Gastonia, NC 28052 Segway Gaming Systems of Alabama F. Lane Finch, Jr. 2001 Park Place, Suite 1200 Birmingham, AL 35203

/s/ Ernest H. Hornsby___________ Of Counsel