A Madison County judge this week ordered that the lawsuit contesting the election of a state representative should not be put on hold following an appeal by the lawmaker to the Alabama Supreme Court.

Circuit Judge Ruth Ann Hall also granted a motion by the plaintiff, Elijah Boyd, for the clerk of the court to appoint a commission for the purpose of taking depositions.

Boyd contested the election of state Rep. David Cole, R-Madison, alleging Cole did not live in House District 10 for at least a year prior to the November election as required by state law. Boyd was the Libertarian Party candidate in the election.

Cole’s attorneys, Algert and Barbara Agricola of Opelika, have argued that the issue is the jurisdiction of the state House of Representatives and not circuit court. After Judge Hall denied a motion to dismiss the lawsuit, Cole appealed to the Alabama Supreme Court while filing a motion to halt all proceedings in circuit court pending the high court ruling.

Hall on Wednesday denied that motion as well, leading to a blistering written response Thursday from Algert Agricola. In listing his experience practicing law in an almost 45-year career, Agricola wrote, “This writer has never seen a ruling from a circuit court judge so devoid of merit as this court’s refusal, now exemplified in three orders, to recognize or acknowledge the constitutional limitations of its subject-matter jurisdiction.”

Agricola added in a footnote that the “only possible exception” could be a 1992 decision by Barbour Circuit Judge William H. Robertson ordering then-Gov. Guy Hunt to call a special session of the legislature for the purpose of congressional redistricting.

The objection asks for the court to “reconsider its orders” and “dismiss this case for lack of subject-matter jurisdiction.”

Cole’s attorneys have argued since Boyd brought his election contest that the House of Representatives has jurisdiction over the case since Cole has already been sworn into office. And in the latest objection, the attorneys note Cole has already been performing the duties of his elected position by participating in House organizational meetings – including votes for House leadership.

In her one-page order, Judge Hall wrote that attorneys for both parties “have thoroughly briefed the matters. And she issued her order “upon consideration of the motions, the pleadings and arguments and contentions of counsel.”

According to his bio on his campaign website, Cole is medical director of Occupational Health Group and was a decorated Army physician in Afghanistan and Iraq. He won 51.5% of the vote with Democrat Marilyn Lands getting 45% and Boyd 3.4%.

Cole, who won the seat vacated by longtime state Rep. Mike Ball, was sworn into office on Nov. 9, 2022 – the day after the election.