lister brown amended petition

8/3/2019 Lister Brown Amended Petition

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PHYLLIS LISTER BROWN,

Plaintiff,

MAYOR M IKE RAWLINGS,COUNCILMEMBER JERRY R. ALLEN,COUNCILMEMBER M ONICA R. ALONZO,COUNCILMEMBER TENNELL ATKINS,

COUNCILMEMBER DWAINE R. CARAWAY,COUNCILMEMBER CAROLYN R. DAVIS,

COUNCILMEMBER SCOTT GRIGGS,

COUNCILMEMBER SANDY GREYSON,

COUNCILMEMBER VONCIEL JONES HILL,COUNCILMEMBER ANGELA HUNT,

COUNCILMEMBER DELIA JASSO,COUNCILMEMBER SHEFFIE KADANE,

COUNCILMEMBER LINDA KOOP,COUNCILMEMBER ANN MARGOLIN, and

COUNCILMEMBER PAULINE MEDRANO

Defendants.

IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

1 01st JUDICIAL DISTRICT

PLA INTIFF'S FIRST AME NDED PE TITION AND

A P P LI CA TI O N F O R TE MP O RA RY A ND P E RMA NE NT I NJUNCTI O N

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff Judge Phyllis Lister Brown ("Plaintiff' or "Judge Brown") respectfully

files this, her First Amended Petition and Application for Temporary and Permanent Injunction

a nd, for cause of a ction, would show as follows:

I. INTRODUCTION

Judge Brown seeks declaratory and injunctive relief to preclude the Defendants,

members of the Dallas City Council (the "City Council"), from taking any action purporting to

PLAINTIFF'S FIRST AMENDED PETITION AND

APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTIONAGE 1

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Filed11 December 6Gary FitzsimmDistrict ClerkDallas District



remove Judge Brown from, or declare forfeited, her position on the municipal court of record in

the City of Da llas (the "Municipa l Court") based on a provision in the Dallas City Charter (the

"Charter") that is ina pplicable on its fa ce to the Municipal Court or to a municipal judge

appointed to serve on the Municipal Court (a "Municipal Judge"). Any such action by the

Defendants will be an ultra vices act, exceeding the authority gra nted to the Defenda nts pursuant

to the Charter and applicable state law; and any ordinance adopted by the Defendants in

furtherance thereof will be invalid.

Judge Brown currently serves on the M unicipal Court as a full-time Municipal

Judge and has served in that capacity for nearly nine years with positive reviews. Judge Brown

now aspires to a position as presiding judge of the 162nd District Court in Dallas County. Under

similar circumstances in 2006, the then members of the City Council attempted, by ordinance, to

wrongfully remove another Municipal Judge, Elizabeth Frizell, from her position on the

Municipal Court because she became a candidate for a judgeship in Dallas County Criminal

C~

On November 8, 201 1 , the City Attorney confirmed in a telephone call with Ra y

Guy, one of Judge Brown's attorneys, that he had conferred with the City Council and that the

current City Council's position with respect to Judge Brown would be the same as it was with

respect to Judge Elizabeth Frizell in 2006. Thus, Judge Brown reasonably believes that the

current members of the City Council will likewise attempt to wrongfully purport to terminate, or

otherwise treat her as having forfeited, her position on the Municipal Court when she announces

her candida cy for the 162nd District Court; and tha t a ny a ttempted hea ring before the City

Council regarding such purported removal or forfeiture will be futile. Moreover, there are no

administrative remedies or procedures within the City of Dallas's hierarchy applicable to Judge



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Brown that must be exhausted as a condition to the bringing of this action. Any action by the

City Council that purports to remove Judge Brown from, or declare forfeited, her position on the

Municipal Court because of her decision to seek to become a District Court judge—a decision

that in the State of Texas necessarily involves a decision to seek a n elective rather than

appointive judicial office—will irreparably injure Judge Brown's candidacy by creating negative

publicity that will likely be viewed unfavorably by voters.

Accordingly, Judge Brown seeks from this Court (1) a declaration that she is not

subject to the Charter provision that requires an "appointive officer of the city," who "becomes a

candidate for nomination or election to any public office," to "immediately forfeit his or her

place or position with the city;" and (2) injunctive relief precluding the Defendants, whether by

the a doption of a n ordinance or otherwise, from taking the ultra vires action of removing Judge

Brown from, or otherwise treating her as having forfeited, her position on the Municipal Court,

based upon the purported applicability of such Charter provision to her position on the Municipal

Court or her status as a Municipal Judge.

II. DISCOVERY CONTROL PLAN

Plaintiff requests that discovery be conducted in this case under a Level Three

discovery control plan.

III. PARTIES

Phyllis Lister Brown is a n individual residing at 83 46 Deep Green Drive, Dallas,

Texas, 75249.

Ea ch of Defenda nts Mike Ra wlings, Jerry R. Allen, Monica R. Alonzo, Tennell

Atkins, Dwa ine R. Ca rawa y, Ca rolyn R. Da vis, Scott Griggs, Sa ndy Greyson, Vonciel Jones

Hill, Angela Hunt, Delia Jasso, Sheffie Ka dane, Linda Koop, Ann Ma rgolin, a nd Pa uline

Medra no is a member of the City Council for the City of Da llas, the body which Plaintiff



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believes will take the actions hereby sought to be enjoined. The Defendants have appeared and

answered herein,

IV. JURISDICTION & VENUE

The Court has subject matter jurisdiction over this action pursuant to Sections

37,003 a nd 65.021 of the Texas Civil Pra ctice and R emedies Code, as Plaintiff seeks decla ratory

and injunctive relief. The Court has personal jurisdiction over Defendants because each of such

Defendants reside in Da llas County, Texas.

Venue of this action is proper in Dallas County, Texas, pursuant to Section

15.002(a)(1) and (3) of the Texas Civil Practice and Remedies Code, because all or a substantial

part of the events or omissions giving rise to the claim have occurred or will occur in Dallas

County, Texa s.

V . FACTUAL BACKGROUND

A.udge B rown Cu rrently Serves a s a Municipal Judge .

6.udge Brown wa s origina lly a ppointed to the M unicipal C ourt by the City Council

on June 8, 1994. She has served in the capacity of a full-time Municipal Judge for nearly nine

years. From her original appointment in 1994 until she became a full-time Municipal Judge,

Judge Brown was an Associate Municipal Judge.

During her tenure, Judge Brown has consistently received positive reviews of her

performance from City prosecutors, defense attorneys, and the Chief Administrative Judges

Michael O'Neal, Jay Robinson and C. Victor Lander. In fact on October 6, 2011, Judge Brown

received a 3.96 performance rating, using a 4.0 scale. At no time has any disciplinary action

been taken against Judge Brown in her capacity as a Municipal Judge.

8.s authorized by Chapter 30 of the Texas Government Code, Chapter VIII, § 4

of the Charter provides that Municipal Judges are considered for reappointment by the City


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Council every two years. See Tex. Gov't Code Ann. § 30.0006. Judge Brown has been

reappointed at every two-year interval during her tenure.

B. M unicipal Judge is a Judicial Official of the State of Texas

9. Although the Texa s Government Code provides that the sa laries of Municipal

Judges in Da llas a re determined by the City Council, Municipal Judges a re not employees of the

City. See Tex. Gov't Code Ann. § 30.0006(h); Thompson v. City of Austin, 979 S. W.2d 676,

682 (Tex. App.—Austin 1998, no pet.). Pursuant to the Texas Constitution, municipal courts are

established directly by the Texas legislature, not the local city in which they sit. See Tex. Gov't

Code Ann. §29.002; § 30.00003; Tex. Const. art. V, § 1. The Texas legislature, however, has

granted the governing body of home rule cities, such as Dallas, the limited power to appoint

Municipal Judges and create "municipa l courts of record" pursuant to Cha pters 29 a nd 30 of the

Texas Government Code. See Tex. Gov't Code Ann. § 29.004, § 30.0006; Dallas City Charter

Ch. II, § 2; Dallas City Code § 1 3-3.

10. Except for the limited power of a ppointment a nd reappointment of a Municipal

Judge to the Municipal Court and the act of creating municipal courts of record, no part of the

sovereign judicial function of the State of Texas has been vested in or delegated to the City of

Dallas (the "C") or its governing body, the City Council. The Municipal Court is a state court,

not a city court. And, a judgeship on the Municipal Court is neither an "office of nor a "place

or position with" the City. Instead, a Municipal Judge is ajudicial official of the State of Texas.

1 1 ,nlike "appointive officers of the city," who administer various executive

functions of City government, a Municipal Judge is not subject to the oversight and control of

the City Council or the City Manager. Rather, a Municipal Judge is governed by the Texas Code

of Judicial Conduct and subject to the oversight and control of the State Commission on Judicial



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Conduct pursuant to the Texa s Constitution a nd Cha pter 33 of the Texas Government Code. See

Tex. Const. art. V, § 1(a); Tex. Gov't Code Ann. § 3 3 . 0 0 2 .

1 2 .unicipal Judges a nd the Municipal Court are a ddressed by the Cha rter

exclusively in Chapter VIII, which is entitled "Municipal Courts." Chapter VIII of the Charter

does not purport to describe the Municipal Court as an "office of the city" or a Municipal Judge

as an "officer of the city." Instead, Chapter VIII of the Charter consistently refers to each of the

persons who shall preside over the Municipal Court only as a "municipal judge."

1 3 .emoval of a Municipal Judge prior to the expiration of his or her appointed term

is specifically limited to the circumstances described in, and requires compliance with the

procedures dictated by, Chapter VIII, § 4A of the Charter (the "Judicial Removal Provision").

The Judicial Removal Provision provides:

A full-time or a ssocia te municipal judge ma y be removed from office by amajority vote of all members of the city council if the council determines,after a hearing before the council, that the municipal judge failed tocomply with, or maintain compliance with:

(1) a ny residency requirements for municipal

judges established by city council ordinance; or

(2) a ny other qua lifica tion or requirements formunicipal judges established by city ordinance, state orfedera l law, or other applica ble law.

1 4.he qua lifications for judges of municipal courts of record in Texa s a re Texas

residency, United States citizenship, status as a licensed attorney in good standing, and two or

more years experience in the practice of law in Texas. TEX. GOVT CODE § 3 0 . 0 0 0 0 6 ( c ) . The

Cha rter imposes no a dditional qua lifications, requiring only that ea ch M unicipal Judge "shall be

a practicing attorney of good standing." Charter, Ch. VIII, § 4.

1 5.owever, as noted below with respect to a prior incident involving another

Municipal Judge, the City Council has previously asserted that Cha pter III, § 1 7(a ) of the Cha rter



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(the " City Officer Resign to Run Provision ") applies to a M unicipa l Judge appa rently on the

theory that a Municipal Judge is an "appointive officer of the city," and that a judgeship on a

Municipal Court is a "place or position with the city." The City previously conceded in the prior

litigation described below involving Judge Elizabeth Frizell (" Judge Frizell ") that a Municipal

Judge is not an "employee of the city" to which similar resign to run provisions are applicable.

See Dallas City Charter Ch. III, § 17(c). Chapter III of the Charter, in contrast to Chapter VIII of

the Charter, is entitled "City Council," and does not address the Municipal Court or Municipal

Judges. The City Officer Resign to Run Provision provides:

No person elected to the city council shall, during the term for which he or

she was elected, be appointed to any office or position of emolument inthe service of the city. If a member of any board a ppointed by the councilor any appointive officer of the city becomes a candidate for nomination

or election to any pu blic office, he or she shall immediately forfeit his or

her place or position with the city.

Da lla s City Charter Ch. III, § 17(a ) (emphasis added).

16. The City Officer Resign to Run Provision is a n "ouster law" tha t ma ndates tha t

any such "appointive officer of the city" must "immediately forfeit his or her place or position

with the city" upon becoming such a candidate for public office. Unless Judge Brown is "an

appointive officer ofthe city," alld her position as a Municipal Judge on the Municipal Court is a

"place or position with the city," the City Officer Resign to Run Provision has no applicability to

Judge Brown. "Ouster laws" such as the City Officer Resign to Run Provision are "penal in

character and must be strictly construed as though defining a crime and proscribing a

punishment." State ex . rel. Schroeder v. McA lister , 365 S.W.2d 696 (Tex. Civ. App.—Sa n

Antonio 1963, no writ.).

17. The City Officer Resign to Run Provision is a general provision of the Charter

that purports to apply generally to all "appointive officers of the city," whereas the Judicial



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Removal Provision is a specific provision of the Charter that applies specifically to Municipal

Judges. The two provisions directly conflict and the general must yield to the specific. See

Ha mmond v. City of Dallas , 71 2 S.W.2d 496, 4 98 (Tex. 1 986) ("We must interpret a city charter

by reading it as a whole and harmonizing its various provisions as far as possible .... Also,

where there is a broad and restrictive clause within a statute, the broad clause is limited or

controlled by the restrictive one.") (internal citations omitted). The Judicial Officer Removal

Provision requires a hearing before the City Council and a finding that a Municipal Judge has

"failed to comply with, or maintain compliance with ... any qualification or requirements for

municipal judges established by city ordinance, state or federal law , or other applicable law."

Charter, Ch. VIII, § 4A (emphasis added). In contrast, the City Officer Resign to Run Provision

does not allow for a hea ring; instead, it manda tes an a utomatic and imm ediate forfeiture of the

offending officer's "place or position with the city" upon becoming a candidate. Charter, Ch. II1,

§ 17(a). If the broad City Officer Resign to Run Provision were applicable to Municipal Judges,

it would be impossible to comply with the specific hearing requirements of the Judicial Removal

Provision. In addition, the City Officer Resign to Run Provision is neither a "qualification or

requirement[j for municipal judges established by city ordinance, state or federal law, or other

applicable law." Therefore, failure to comply with the City Officer Resign to Run Provision by a

Municipal Judge could not form the basis for any removal proceeding aga inst Judge Brown

pursuant to the specific requirements of the Judicial Removal Provision. And any attempt by the

City Council to enlarge the Judicial Removal Provision is unauthorized and violates the rules of

statutory construction. See Hammond , 71 2 S.W.2d at 4 98 ("Further, where there is a grant of

power of a municipal corporation, the grant will be strictly construed, the power should not be

enlarged by liberal construction, and any conflict should be resolved against the corporation. ")



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1 8.unicipa l Judges fall squa rely within the judicial bra nch of government a nd

must act with complete independence from a city council. See Thompson, 979 S.W.2d at 683.

Allowing the City Council to act as if it owned the Municipal Court or to treat a Municipal Judge

as a subordinate "officer of the City," who must act under the direction and control of the City

Council or the City Ma nager, would contravene the fundamenta l separa tion of powers between

the three branches of government gua ranteed by the Texa s Constitution a nd ca ll into question the

true independence of an essential part of the state judicial system.

1 9.udge Brown does not challenge the validity of the City Officer Resign to Run

Provision, but rather the City Council's ultra vices a pplication of tha t provision to Municipal

Judges to whom it does not apply and that conflicts with the specific Judicial Removal Provision.

C.udge Brown Seeks a Position on the 1 62nd District Court.

20 .udge Brown aspires to further serve the people of Texas by seeking a position on

the 1 62nd District Court, which, in Texas, requires Judge Brown to become a candida te for

public office.

21 .s of the date of this Petition, a Committee to Elect Judge Brown has collected

hundreds of signatures towards her candidacy for the 162nd District Court.

22 .udge Brown intends to file the required paperwork to be listed as a candidate in

the Democratic Party's primary election to the 162nd District Court as soon as possible, and

thereby become a candida te for judicial office.

D .he City Council Has a History of Attempting to

Wrongfully Remove M unicipal Judges that Run for Judicial Office.

23 .n 2006, the City Council attempted to forcibly remove Judge Frizell from her

position as a Municipal Judge because she ra n for a judgeship in the County Criminal C ourt No.

1 1 .



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24 .udge Frizell was appointed to the Municipal Court in August 1996 and served in

the capa city of a n a ssocia te judge for nearly ten years prior to a nnouncing her candida cy for the

bench in County Criminal Court No. 11 .

25. On or about December 27, 2005, Judge Frizell filed the required paperwork to be

listed as a candida te in the Democratic Party's primary election for County Criminal Court No.

1 1 .

26. On or a bout Janua ry 4, 2006, Chief Administrative Judge Jay Robinson, requested

that Judge Frizell resign from her position on the Municipal Court. The sole reason provided for

the request for her resignation was her candidacy for judicial office.

27. Judge Frizell believed the request was unconstitutional and refused to resign from

her position.

28. On or a bout Janua ry 1 1 , 2006, Judge Frizell received a letter from Adm inistrative

Chief Judge Robinson notifying her that she would not be placed on the docket to sit as judge in

a ny ca se before the Municipal Court.

29. On or about March 7, 2006, Judge Frizell won the primary election for the County

Criminal Court No. 11 position and began campaigning as a candidate for the County Criminal

Court No. 11 position.

30. On or about April 17 , 2006, the City Council pla ced on its a genda an ordinance

created specifically to remove Judge Frizell from her position on the Municipal Court on the sole

basis that she had allegedly violated the City Officer Resign to Run Provision by becoming a

candida te for a public office.



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31. At the meeting held on April 26, 2006 , the City Council vote on the proposed

ordinance was tabled and the contemplated action against Judge Frizell was postponed. It was

thereafter placed on its agenda to be heard a t the June 28, 2006 meeting.

32. At the June 28, 2006 meeting, the City Council adopted Ordinance Num ber 26407

purporting to remove Judge Frizell from her position as associate judge on the Municipal Court

specifically and solely on the basis of her purported violation of the City Officer Resign to Run

Provision.

33. On July 7, 2006, The United States District Court for the Northern District of

Texas granted Judge Frizell a preliminary injunction, prohibiting the City, the City Council, and

all persons in active concert or participation with them, from directly or indirectly taking any

action to remove Judge Frizell from her position on the Municipal Court based upon her

purported violation of the City Officer Resign to Run Provision.

34. The City Council filed a notice of appeal of the preliminary injunction to the

United States Court of Appeals for the Fifth Circuit. Thereafter, the City Council agreed to

withdraw its appeal, but without conceding that Judge Frizell's purported removal was improper.

35. Judge Frizell won election to the position as presiding judge of County Criminal

Court No. 11, where she currently presides today.

E .he City Attorney Confirmed that the City Intends to Take Action to

Rem ove Judge Brown if She Runs for the 162nd District Court.

36. In an effort to determine whether the City Council's position has changed since

the unfortunate dispute that arose with Judge Frizell in 2006, two of Judge Brown's attorneys,

Glenn West a nd Ra y Guy, met w ith Thoma s P. Perkins, Jr., the City Attorney, and several of his

colleagues, on October 27, 2011. In advance of that meeting, Mr. Guy also sent a letter to Mr.

Perkins, dated October 26, 2011, outlining the basic position of the Plaintiff with respect to the



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inapplicability of the City Officer Resign to Run Provision to her as a Municipal Judge of the

Municipal Court. At the October 27, 2011 meeting, Mr. Guy and Mr. West furthered outlined

those positions and requested that the City Attorney advise Mr. West and Mr. Guy of the City

Council's current position regarding the applicability of the City Officer Resign to Run Provision

a s to Judge Brown a nd her position on the M unicipa l Court.

37. Plaintiff delayed filing her Original Petition in an effort to provide the City

Council ample time to consider its position with respect to the applicability of the City Officer

Resign to Run Provision to Judge Brown and her position on the Municipal Court. Mr. Perkins

provided that answer on November 8, 2011, in a telephone call with Mr. Guy: The current City

Council takes the position that Judge Brown and her position on the Municipal Court are subject

to the City Officer Resign to Run Provision.

38. In light of the City Council's efforts to remove Judge Frizell from her position as

a Municipal Judge in 2006, and Mr. Perkins' unequivocal statement that the City Council has not

changed its position on the applicability of the City Officer Resign to Run Provision since its

actions against Judge Frizell in 2006, Judge Brown has a credible basis to believe that the City

Council will similarly attempt to take ultra vires action, by ordinance or otherwise, purporting to

remove her from, or declare forfeited, her position on the Municipal Court when she announces

her candidacy for the 162nd District Court.

V I . DECLARATORY JUDGMENT

39. The a llegations of para graphs 1 through 38 a bove are incorpora ted herein by

reference a s if set forth fully below.

40. A real and substantial justiciable controversy exists between the members of the

City Council and Judge Brown in regards to whether she must relinquish her position as a

Municipal Judge if she runs for the 162nd District Court. Based upon the City Council's prior



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actions and the City Attorney's express statements concerning the City Council's intentions

regarding Judge Brown, immediate litigation regarding the City Officer Resign to Run Provision

is unavoidable.

41. Pursuant to the provisions of the Texas Civil Practice & Remedies Code Section

37 .001 et seq., and the Texa s Constitution, Plaintiff seeks a judgment of this Court declaring that

Cha pter III, § 17 (a) of the Cha rter does not apply to Judge Brown, as a Municipal Judge, or to her

position on the Municipal Court; and that she is therefore not required to forfeit or otherwise

resign her position on the Municipal Court in order to run for another judicial office. The City

Officer Resign to Run Provision does not apply to Judge Brown because Judge Brown is not an

"officer of the city," but a judicial officer of the State of Texas. Moreover, even if Judge Brown

somehow could be considered an "officer of the city," her position as a Municipal Judge on the

Municipal Court is not a "place or position with the city" that could therefore be subject to

forfeiture under the City Officer Resign to Run Provision. Further, application of the City

Officer Resign to Run Provision to her as a Municipal Judge would directly conflict with the

Judicial Removal Provision. Accordingly, any ordinance adopted by the City Council purporting

to apply the City Officer Resign to Run Provision to Judge Brown would be ultra vires a nd

invalid.

V I I . A P P LI CA TI O N F O R TE MP O RA RY A ND P E RMA NE NT I NJUNCTIO N

42. The a llega tions of para graphs 1 through 41 a re incorpora ted herein by reference

as if fully set forth below.

43. Any adverse action by the City Council regarding Judge Brown's position as a

Municipal Judge on the Municipal Court will have a substantial negative effect on her cam paign

for the 162nd District Court, including negative publicity and the very real potential that voters

ma y view her in a negative light.



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44. If Defendants purport to remove Judge Brown from, or declare forfeited, her

position on the Municipal Court, Judge Brown's campaign will be negatively impacted because

she cannot call herself a judge in her campaign without obtaining a definitive ruling from this

Court that such removal or forfeiture was invalid.

45. Further, given that judicial candidates are limited to a platform that they will "be

good judges," Tex. Code Jud. Conduct, Canon 2, any action by the City Council to remove her

from, or declare forfeited, her position on the Municipal Court could be used by her opponents in

the election to create a n inference that she wa s somehow not a "good judge," thereby causing

substantial ha rm to her candidacy.

A.robable Right to the Relief Sought

46. Judge Brown has a probable right to the relief sought in her claim a ga inst

Defendants beca use the City Officer Resign to Run Provision is inapplica ble to a Municipal

Judge. Although Judge Brown was appointed to an "office" by the City Council pursuant to the

legislative delegation of that appointive power, that "office" is a state judicial office, not a city

office that could be subjected to forfeiture under the City Officer Resign to Run Provision.

Judge Brown, as a Municipal Judge, therefore, ma y ha ve been a ppointed to a state "office" by

the City, but she is not an "officer" of the City. And, even if she could somehow be considered

a n "a ppointive officer of the city," which Plaintiff denies, her position as a Municipal Judge on

the Municipal Court is not a "place or position with the city." Judge Brown should not be

required to forfeit or resign her position, or be subject to removal, simply by virtue of deciding to

run for another judicial position. Instead, as a member of the state judiciary, she is only required

to resign her current judgeship prior to accepting another judicial position. See Tex. Const. art.

XVI, § 40.



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47. Municipal courts derive their power and jurisdiction from the State of Texas.

Pursuant to constitutiona l a uthority, the Texa s Legislature created a municipal court in each

municipality and defined the court's jurisdiction. See Tex. Gov't Code Ann. §§ 29.002, 29.003,

and 30.00006; Tex. Const. art. V, § 1. The Texas legislature granted home rules cities, such as

Da llas, the limited power to appoint Municipal Court Judges and create "municipa l courts of

record" pursuant to Chapters 29 and 30 of the Texas Government Code. See Tex. Gov't Code

Ann. § 29.004; § 30.0006; Dallas City Charter Ch. 11, § 2, Dallas City Code § 13-3.

48. Municipal judges belong to the judicial branch of government and a ny a ttempt to

control their exercise of judicial functions would violate Texas's separation of powers doctrine.

See Tex. Const. a rt. II, § 1 ; City of Roma n Forest v. Stockma n, 14 1 S.W.3d 805, 81 0 (Tex.

App. Beaumont 2004, no pet.). The mere fact that the Texas legislature granted the City

Council the power to appoint Municipal Judges to the Municipal Court and required that the

sala ries of Municipal Judges be determined a nd pa id by the City, does not covert a state judicial

position into a position with the City or a state judicial officer into an officer of the City.

49 ,Municipal Judge is a "public officer." See Op. Tex. Att'y Gen. No. DM-428

(1996). The distinguishing feature of a public officer is that a sovereign function of the

government is conferred upon her to be exercised "for the benefit of the public largely

independent of the control of others." Aldine Indep. Sch, Dist. v. Standley, 280 S.W.2d 578, 583

(Tex. 1955). Municipal judges are members of the state judiciary and must be able to make

rulings independent of the city's governing body. See e.g., City of Roman Forest, 141 S.W.3d at

805. Municipal judges in Dallas are specifically designated as "magistrates" by the Texas

legislature. See Tex. Gov't Code Ann. § 30.0006(e).



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50. Further, removal of a Municipal Judge is expressly limited to the circumstances

and procedures dictated by the Judicial Removal Provision. Application of the City Officer

Resign to Run Provision to Municipal Judges would directly conflict with the Judicial Removal

Provision. See Hammond , 712 S.W.2d at 498. Moreover, the City Officer Resign to Run

Provision is an "ouster law" that must be strictly construed. See Schroeder , 365 S. W.2d 696

(interpreting city charter provision that made forfeiture the penalty for violation of provision

forbidding any city officer or employee from having a financial interest in a city contract).

B .hreat of Probable, Imminent, and Irrepa rable Injury

51. Judge Brown will suffer a probable, imminent and irreparable injury if, as she

reasona bly a nticipates, the Defendants take action, by a doption of a n ordinance or otherwise, to

purport to remove her from, or declare forfeited, her position as a Municipal Judge on the

Municipal Court. A Texas Judicial Ethics Advisory Opinion states that former judges who are

running for a nother judicia l office ma y not use the title "Judge" in any cam pa ign ma terials.

Committee on Judicial Ethics, Op. 195 (1996). Based on that opinion, if Defendants purport to

remove Judge Brown from, or declare forfeited, her position on the Municipal Court, Judge

Brown cannot call herself ajudge in her campaign without obtaining a definitive ruling from this

Court that such removal or forfeiture was invalid. In a campaign where her appeal to voters will

doubtless include her experience on the bench, creating any question about Judge Brown's

ability to use her title as ajudge while campaigning for the 162nd District Court constitutes

irreparable harm for which injunctive relief should issue.

52. Judge Brown will be irrepara bly harmed if the Defendants a re permitted to

purport to remove her from, interfere with, or declare forfeited, her position on the Municipal

Court. Judge Brown will suffer the unique harm of a negative perception by voters for being

forcibly removed from office for a purported violation of the Charter. In a campaign limited to a


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platform that she will be a "good judge," any subsequent vindication would be too inarticulable

to overcome the prejudice suffered by Judge Brown in the eyes of such voters. Thus, for the

reasons stated, the Court should find that Judge Brown will suffer irreparable injury absent

issuance of a preliminary injunction.

C.o A dequate Remedy at Law

53. Judge Brown has no a dequate remedy a t law for the ongoing and potential injuries

to her upcoming candidacy. No amount of money damages could compensate her for the

negative inferences that will be drawn by voters if Defendants purport to remove her from, or

declare forfeited, her position on the Municipal Court or for the loss of or uncertainty respecting

her ability to campaign using the title "Judge." This protected interest is unique and irreparable.

For the potentia l harm and dam a ge that would be inflicted upon Judge Brown but for the

intervention of this Court, Judge Brown ha s no a dequate remedy a t law.I

54. Plaintiff Judge Brown is ready a nd willing to post a rea sonable bond in an am ount

deemed appropriate by this Court. However, Plaintiff Judge Brown contends that no bond is

necessary in this case to protect Defendants.

D.ause of Action Against the Defendants

5 5 .laintiff seeks injunctive relief from this Court pursuant to equitable principles,

Texas Rules of Civil Procedure 6 8 0 a nd 6 8 1 , and Texas Civil Practice and Remedies Code

Section 6 5 . 0 1 1 , which provides in part:

' An a pplica nt seeking to enjoin the viola tion of a city ordinance is not required to prove it has no a dequate remedyat law. See Schleuter v. City of Fort Worth, 947 S.W.2d 920, 932 (Tex. App.—Fort Worth 1997, writ denied); SanMiguel v. City of Windcrest, 40 S.W.3 d 1 04, 1 08 (Tex. App.—Sa n Antonio 2000, no pet.). Seeking to enjoin theCity Council from violating the Charter through the ultra vires a doption of a n ordinance or otherwise shouldsimilarly not require proof that the applicant has no adequate remedy at law. Because the City Officer Resign toRun Cha rter Provision does not a pply to Judge Brown, if the City Council were to declare Judge B rown's positionon the M unicipa l Court forfeited, or otherwise remove Judge Brown, the City Council would violate Cha pter VIII,§ 4a of the City Charter by removing Judge Brown for a n una uthorized reason.



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A writ of injunction may be granted if:

(1) the a pplicant is entitled to the relief dema nded a nd a ll or pa rt of the reliefrequires the restraint of some act prejudicial to the applicant;

(2 ) ' a party performs or is abou t to perform or is procuring or a llowing the

performance of an act relating to the subject of pending litigation, inviolation of the rights of the applicant, and the act would tend to render thejudgment in that litigation ineffectual;

(3) the a pplicant is entitled to a writ of injunction under the principles ofequity and the statutes of this state relating to injunctions;

(emphasis added.)

56.udge Brown is a lso entitled to a permanent injunction pursuant to Texa s Civil

Practice and Remedies Code Section 65.011 because:

a . Judge Brown is entitled to the relief above demanded and such relief

requires the restraint of Defendants from acts that will be prejudicial to

Judge Brown;

b. Defendants ma y a ct in violation of Judge Brown's right to be a candida te

for public office;

c. Judge Brown is entitled to a writ of injunction under the principles of

equity; and

d. irreparable injury to Judge Brown is threatened, irrespective of any

remedy at law.

57.udge Brown therefore also requests that a permanent injunction be issued upon

final trial.

58.he temporary a nd perma nent injunction should provide as follows:

Defendants, their agents, employees, and representatives,and all persons in active concert or participation with them,shall not, either directly or indirectly, on behalf of anyonetake a ny a ction, by adoption of an ordinance or otherwise,



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to remove Judge Brown from, or declare forfeited, herposition on the Municipal Court on the ba sis of anypurported application of Cha pter III, § 1 7(a ) of the Cha rterto a Municipal Judge or the Municipa l Court.

VIII. REQUE ST FOR DISCLOSURE

59 .ursuant to Rule 1 94 .1 of the Texa s Rules of Civil Procedure, Pla intiff Judge

Brown requests that Defendants disclose the information identified in Rule 194.2(a)-(i). Plaintiff

Judge Brown request that Defendants disclose such information within seven (7) days of being

served with this Petition and Request.

IX . PRAYER FOR RELIEF

WHER EFORE, PREM ISES CONSIDERED, Plaintiff Judge Brown respectfully

requests that, upon final trial in this matter, the Court award the following:

(i) a temporary injunction, as set forth above;

(ii) a permanent injunction, as set forth above;

(iii) ajudgment declaring that the City Officer Resign to Run Provision does

not apply to Judge Brown or her position a s a Municipal Judge on the

Municipal Court;

(iv) to the extent, if any, that the Charter purports to characterize Judge Brown

a s a n "a ppointive officer of the city" and her judgeship a "place or

position with the city," a judgment declaring that the Charter exceeds the

authority granted to the City Council under the Texas Constitution; and

(v ) such other and further relief, at law or in equity, to which Judge Brown

may be justly entitled.



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Da ted: December 6, 201 1

su itted,

T. Ray GuyState Bar N . 08648500

Glenn D. WestState Bar No. 211 98300

W EI L, GO TS HAL & M A N G E S L L P

200 Crescent Court, Suite 300Dallas, Texas 75201-6950

(214 ) 746-7700 (Telephone)

(214) 746-7777 (Telecopy)

ATTO R N EY S FO R PLAI N TI FFJ U D GE PHY LLI S LI S TER B R O W N


APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION AGE 20US ACTIVE :\43870483\O8\99995.4210



VERIFICATION

STATE OF TEXAS

COUNTY OF DALLAS

On this day Phyllis Lister Brown personally appeared before me, the undersigned

Notary Public, and a fter being duly sworn stated under oath tha t she is the Plaintiff in this action;

that she ha s read the above motion; and tha t every sta tement conta ined in the motion is within

her persona l knowledge a nd is true a nd correct.

Phyllis LIS eerBrown

SWORN TO AND SUBSCRIBED before me on L ~

ecernv2011.

I i . -N A R R Y S T E V E N S

MY COMMISSION EXPIRES

'I4GN31 „ • ~eroh5,2014

Cltkt cz o>~

Notary blic for the State of Texas

PLAINTIFF 'S FIRST AMENDED PETITION AND

APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing was electronically

filed and served on D ecember 6, 20 11, via certified m ail, return receipt requested, on the

following counsel of record in accordance with the Texas R ules of Civil Procedure:

James Pinson

Dallas Assistant City Attorney

Dallas City Hall

1500 M arilla, Room 7DN

Dallas, TX 75201-6622

214-670-4844

u c

lister brown amended petition

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