Filed 11 December 6 P4:00 Gary Fitzsimmons District Clerk Dallas District

1a[$ iBEPAII3 PHYLLIS LISTER BROWN, Plaintiff, IN THE DISTRICT COURT OF

MAYOR MIKE RAWLINGS, COUNCILMEMBER JERRY R. ALLEN, COUNCILMEMBER MONICA 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.

DALLAS COUNTY, TEXAS

101st JUDICIAL DISTRICT

PLAINTIFF'S FIRST AMENDED PETITION AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION
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 and, for cause of action, 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

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remove Judge Brown from, or declare forfeited, her position on the municipal court of record in the City of Dallas (the "Municipal Court") based on a provision in the Dallas City Charter (the "Charter") that is inapplicable on its face 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 granted to the Defendants 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 Municipal 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, 2011, the City Attorney confirmed in a telephone call with Ray 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 candidacy for the 162nd District Court; and that any attempted hearing 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 judgea decision that in the State of Texas necessarily involves a decision to seek an elective rather than appointive judicial officewill 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 adoption of an 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 an individual residing at 8346 Deep Green Drive, Dallas, Texas, 75249. Each of Defendants Mike Rawlings, Jerry R. Allen, Monica R. Alonzo, Tennell Atkins, Dwaine R. Caraway, Carolyn R. Davis, Scott Griggs, Sandy Greyson, Vonciel Jones Hill, Angela Hunt, Delia Jasso, Sheffie Kadane, Linda Koop, Ann Margolin, and Pauline Medrano is a member of the City Council for the City of Dallas, 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 and 65.021 of the Texas Civil Practice and Remedies Code, as Plaintiff seeks declaratory and injunctive relief. The Court has personal jurisdiction over Defendants because each of such Defendants reside in Dallas 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, Texas.

V.
A. 6.

FACTUAL BACKGROUND

Judge Brown Currently Serves as a Municipal Judge . Judge Brown was originally appointed to the Municipal Court 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. As 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.
9.

A Municipal Judge is a Judicial Official of the State of Texas Although the Texas Government Code provides that the salaries of Municipal

Judges in Dallas are determined by the City Council, Municipal Judges are 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 "municipal 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. II, 2; Dallas City Code 13-3. 10. Except for the limited power of appointment and 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. 11, Unlike "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 Texas Constitution and Chapter 33 of the Texas Government Code. See Tex. Const. art. V, 1(a); Tex. Gov't Code Ann. 33.002.
12.

Municipal Judges and the Municipal Court are addressed by the Charter

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."
13.

Removal 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 associate municipal judge may be removed from office by a majority vote of all members of the city council if the council determines, after a hearing before the council, that the municipal judge failed to comply with, or maintain compliance with: (1) any residency requirements for municipal judges established by city council ordinance; or (2) any other qualification or requirements for municipal judges established by city ordinance, state or federal law, or other applicable law. 14. The qualifications for judges of municipal courts of record in Texas are 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 30.00006(c). The Charter imposes no additional qualifications, requiring only that each Municipal Judge "shall be a practicing attorney of good standing." Charter, Ch. VIII, 4. 15. However, as noted below with respect to a prior incident involving another

Municipal Judge, the City Council has previously asserted that Chapter III, 17(a) of the Charter

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(the " City Officer Resign to Run Provision ") applies to a Municipal Judge apparently 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 in the service of the city. If a member of any board appointed by the council or any appointive officer of the city becomes a candidate for nomination or election to any public office, he or she shall immediately forfeit his or her place or position with the city. Dallas City Charter Ch. III, 17(a) (emphasis added). 16. The City Officer Resign to Run Provision is an "ouster law" that mandates that

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. McAlister , 365 S.W.2d 696 (Tex. Civ. App.San 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

Hammond v. City of Dallas , 712 S.W.2d 496, 498 (Tex. 1986) ("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 hearing; instead, it mandates an automatic and immediate 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 against 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 , 712 S.W.2d at 498 ("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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18.

Municipal Judges fall squarely within the judicial branch of government and

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 Manager, would contravene the fundamental separation of powers between the three branches of government guaranteed by the Texas Constitution and call into question the true independence of an essential part of the state judicial system. 19. Judge Brown does not challenge the validity of the City Officer Resign to Run

Provision, but rather the City Council's ultra vices application of that provision to Municipal Judges to whom it does not apply and that conflicts with the specific Judicial Removal Provision. C. 20. Judge Brown Seeks a Position on the 162nd District Court. Judge Brown aspires to further serve the people of Texas by seeking a position on

the 162nd District Court, which, in Texas, requires Judge Brown to become a candidate for public office. 21. As 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. Judge 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 candidate for judicial office.
D. The City Council Has a History of Attempting to Wrongfully Remove Municipal Judges that Run for Judicial Office.

23.

In 2006, the City Council attempted to forcibly remove Judge Frizell from her

position as a Municipal Judge because she ran for a judgeship in the County Criminal Court No. 11.

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24.

Judge Frizell was appointed to the Municipal Court in August 1996 and served in

the capacity of an associate judge for nearly ten years prior to announcing her candidacy 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 candidate in the Democratic Party's primary election for County Criminal Court No. 11. 26. On or about January 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. her position. 28. On or about January 11, 2006, Judge Frizell received a letter from Administrative Judge Frizell believed the request was unconstitutional and refused to resign from

Chief Judge Robinson notifying her that she would not be placed on the docket to sit as judge in any case 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 placed on its agenda 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 candidate 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 at the June 28, 2006 meeting. 32. At the June 28, 2006 meeting, the City Council adopted Ordinance Number 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. The City Attorney Confirmed that the City Intends to Take Action to Remove 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 and Ray Guy, met with Thomas 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 as to Judge Brown and her position on the Municipal 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.

VI. DECLARATORY JUDGMENT

39. The allegations of paragraphs 1 through 38 above are incorporated herein by

reference as 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 Texas Constitution, Plaintiff seeks a judgment of this Court declaring that Chapter III, 17(a) of the Charter 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 and invalid.

VII. APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION

42. The allegations of paragraphs 1 through 41 are incorporated 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 campaign for the 162nd District Court, including negative publicity and the very real potential that voters may 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 an inference that she was somehow not a "good judge," thereby causing substantial harm to her candidacy. A. 46. Probable Right to the Relief Sought Judge Brown has a probable right to the relief sought in her claim against

Defendants because the City Officer Resign to Run Provision is inapplicable 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, may have been appointed to a state "office" by the City, but she is not an "officer" of the City. And, even if she could somehow be considered an "appointive 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 constitutional authority, the Texas 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 Dallas, the limited power to appoint Municipal Court Judges and create "municipal 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 any attempt to

control their exercise of judicial functions would violate Texas's separation of powers doctrine. See Tex. Const. art. II, 1; City of Roman Forest v. Stockman, 141 S.W.3d 805, 810 (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 salaries of Municipal Judges be determined and paid 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, A 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.

Threat of Probable, Imminent, and Irreparable Injury

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

reasonably anticipates, the Defendants take action, by adoption of an 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 another judicial office may not use the title "Judge" in any campaign materials. 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 irreparably harmed if the Defendants are 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. No Adequate Remedy at Law 53. Judge Brown has no adequate remedy at 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 potential harm and damage that would be inflicted upon Judge Brown but for the intervention of this Court, Judge Brown has no adequate remedy at law. 54.
I

Plaintiff Judge Brown is ready and willing to post a reasonable bond in an amount

deemed appropriate by this Court. However, Plaintiff Judge Brown contends that no bond is necessary in this case to protect Defendants.

D. 55.

Cause of Action Against the Defendants Plaintiff seeks injunctive relief from this Court pursuant to equitable principles,

Texas Rules of Civil Procedure 680 and 681, and Texas Civil Practice and Remedies Code Section 65.011, which provides in part:

' An applicant seeking to enjoin the violation of a city ordinance is not required to prove it has no adequate remedy at law. See Schleuter v. City of Fort Worth, 947 S.W.2d 920, 932 (Tex. App.Fort Worth 1997, writ denied); San Miguel v. City of Windcrest, 40 S.W.3d 104, 108 (Tex. App.San Antonio 2000, no pet.). Seeking to enjoin the City Council from violating the Charter through the ultra vires adoption of an ordinance or otherwise should similarly not require proof that the applicant has no adequate remedy at law. Because the City Officer Resign to Run Charter Provision does not apply to Judge Brown, if the City Council were to declare Judge Brown's position on the Municipal Court forfeited, or otherwise remove Judge Brown, the City Council would violate Chapter VIII, 4a of the City Charter by removing Judge Brown for an unauthorized reason.

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A writ of injunction may be granted if: (1) the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant;

(2) ' a party performs or is about to perform or is procuring or allowing the performance of an act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual; (3) (emphasis added.) 56. Judge Brown is also entitled to a permanent injunction pursuant to Texas Civil the applicant is entitled to a writ of injunction under the principles of equity and the statutes of this state relating to injunctions;

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 may act in violation of Judge Brown's right to be a candidate 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. final trial. 58. The temporary and permanent 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 anyone take any action, by adoption of an ordinance or otherwise, Judge Brown therefore also requests that a permanent injunction be issued upon

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to remove Judge Brown from, or declare forfeited, her position on the Municipal Court on the basis of any purported application of Chapter III, 17(a) of the Charter to a Municipal Judge or the Municipal Court.

VIII. REQUEST FOR DISCLOSURE

59. Pursuant to Rule 194.1 of the Texas Rules of Civil Procedure, Plaintiff 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

WHEREFORE, PREMISES CONSIDERED, Plaintiff Judge Brown respectfully requests that, upon final trial in this matter, the Court award the following: (i) (ii) (iii) a temporary injunction, as set forth above; a permanent injunction, as set forth above; ajudgment declaring that the City Officer Resign to Run Provision does not apply to Judge Brown or her position as a Municipal Judge on the Municipal Court; (iv) to the extent, if any, that the Charter purports to characterize Judge Brown as an "appointive 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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Dated: December 6, 2011 su itted,

T. Ray Guy State Bar N . 08648500 Glenn D. West State Bar No. 21198300

WEIL, GOTSHAL & MANGES LLP 200 Crescent Court, Suite 300 Dallas, Texas 75201-6950 (214) 746-7700 (Telephone) (214) 746-7777 (Telecopy) ATTORNEYS FOR PLAINTIFF JUDGE PHYLLIS LISTER BROWN

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VERIFICATION

STATE OF TEXAS COUNTY OF DALLAS On this day Phyllis Lister Brown personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that she is the Plaintiff in this action; that she has read the above motion; and that every statement contained in the motion is within her personal knowledge and is true and correct. Phyllis LISlerBrown er

. SWORN TO AND SUBSCRIBED before me on L~ecern

(v

, 2011.

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SNARRYSTEVENS
MY COMMISSION EXPIRES Meroh5,2014

Notary blic for the State of Texas

'I4GN 11~ :3

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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 December 6, 2011, via certified mail, return receipt requested, on the following counsel of record in accordance with the Texas Rules of Civil Procedure: James Pinson Dallas Assistant City Attorney Dallas City Hall 1500 Marilla, Room 7DN Dallas, TX 75201-6622 214-670-4844

uc

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