IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

ELECT SITTING JUDGES

MONTGOMERY COUNTY SLATE,
ETAL,

Plaintiffs,
v. : Case No.

MARYLIN PIERRE,

Defendant.

MOTION FOR A TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTIVE RELIEF
AND MEMORANDUM OF LAW IN SUPPORT THEREOF
(REQUEST FOR A HEARING)

Plaintiffs, Elect Sitting Judges Montgomery County Slate ("Slate") and The

Honorable Bibi M. Berry, David A. Boynton, Christopher C. Fogleman and Michael J.

McAuliffe ("Sitting Judges"), by and through their attorneys, J. Stephen McAuliffe, III,

Rosalyn Tang and Miles & Stockbridge P.C., pursuant to Rules 15-501 et. seq., 1-351

and 2-311(c)(d), and Md. Code Ann., Elec. Law § 12-202, hereby file this Motion for a

Temporary Restraining Order and Preliminary Injunctive Relief and Memorandum of

Law in Support Thereof, and state as follows:

INTRODUCTION

The Sitting Judges are running in the November 3, 2020 retention election to

retain their judicial seats on the Circuit Court for Montgomery County, Maryland. Their

challenger, Marylin Pierre, is an attorney, who is seeking to unseat one of the Sitting

Judges in this contested election. All five (5) candidates are on the ballot, and voters may

only vote for four (4) candidates.

000001\012239\4827-022 1-3584.v 1
 The highly contested election has yielded close results demonstrating that every

vote matters and each and every vote can change the outcome of this close judicial

election. In the June 2020 Democratic Primary, Ms. Pierre received approximately

95,728 votes, exceeding the votes received by judicial candidates and Sitting Judges,

Judge Fogleman by 4,687 votes, and Judge McAuliffe by 1,128 votes. Ms. Pierre nearly

equaled or exceeded the votes received by judicial candidate and Sitting Judge, Judge

Boynton, who only received 665 more votes than Ms. Pierre.

On October 26, 2020, Ms. Pierre through her authorized agent misrepresented that

Ms. Pierre is a judge multiple times to several prospective voters at the Silver Spring

early voting center. Ms. Pierre is not a judge. Despite attempts to correct Ms. Pierre's

authorized agent, the authorized agent continued to represent to a number of prospective

voters that Ms. Pierre is a judge. The misrepresentation is not only improper, but it also

may change the outcome of this very close election. Accordingly, Plaintiffs request a

temporary restraining order to enjoin Ms. Pierre andlor her authorized agents from

misrepresenting Ms. Pierre's identity as a judge.

STATEMENT OF FACTS

The facts pertinent to this Motion as alleged and verified in Plaintiffs' Verified

Complaint and supporting affidavits attached and incorporated herein by reference as

fully set forth below:

Plaintiff, Elect Sitting Judges Montgomery County Slate ("Slate"), is a

Maryland political committee with its principal office located in Montgomery County,

Maryland. The Slate consists of The Honorable Bibi M. Berry, David A. Boynton,

Christopher C. Fogleman and Michael J. McAuliffe ("Sitting Judges"), who are running

2
in the November 3, 2020 retention election to retain their judicial seats on the Circuit

Court for Montgomery County, Maryland. (Verified Compl. at ¶ 4).

2. Plaintiff, The Honorable Bibi M. Berry ("Judge Berry"), is a resident of

Montgomery County, Maryland and a Maryland registered voter. Judge Berry is a

candidate seeking to retain her judicial seat on the Circuit Court for Montgomery County,

Maryland in the November 3, 2020 election. Id. at ¶ 5.

3. Plaintiff, The Honorable David A. Boynton ("Judge Boynton"), is a

resident of Montgomery County, Maryland and a Maryland registered voter. Judge

Boynton is a candidate seeking to retain his judicial seat on the Circuit Court for

Montgomery County, Maryland in the November 3, 2020 election. Id. at ¶ 6.

4. Plaintiff, The Honorable Christopher C. Fogleman ("Judge Fogleman"), is

a resident of Montgomery County, Maryland and a Maryland registered voter. Judge

Fogleman is a candidate seeking to retain his judicial seat on the Circuit Court for

Montgomery County, Maryland in the November 3, 2020 election. Id. at ¶ 7.

5. Plaintiff The Honorable Michael J. McAuliffe ("Judge McAuliffe"), is a

resident of Montgomery County, Maryland and a Maryland registered voter. Judge

McAuliffe is a candidate seeking to retain his judicial seat on the Circuit Court for

Montgomery County, Maryland in the November 3, 2020 election. Id. at ¶ 8.

6. Defendant, Marylin Pierre ("Pierre"), is a resident of Montgomery,

Maryland. Pierre is a candidate for election pursuant to Maryland Rule l8 -104.1(c) as

she is an individual who seeks initial election to the circuit court in the November 3, 2020

election against the Sitting Judges. Pierre is an attorney. She is not a judge. Id. at ¶ 9.

3
 7. On or about July 2, 2019, Pierre filed for candidacy to appear on the ballot

for a judicial position on the Circuit Court for Montgomery County, Maryland in the

November 3, 2020 election. Id. at ¶ 10.

8. In the June 2020 Democratic Primary, Pierre received approximately

95,728 votes. Id., Ex. A (Official 2020 Primary Election Results for Montgomery

County).' Pierre received 4,687 more votes that Judge Fogleman; 1,128 more votes than

Judge McAuliffe; and just 665 less votes than Judge Boynton. Id.

9. On October 26, 2020, Judge Berry and Mary Agnes Rogers appeared at

the early voting center located at the Silver Spring Civic Building, 1 Veterans Place in

Silver Spring, Maryland. Id., Ex. B (Berry Aff. at ¶ 5); Ex C (Rogers Aff. at ¶ 2).

10. In the late afternoon that day, Judge Berry and Ms. Rogers encountered a

woman who later became known to them as Yvonne Butler. Ms. Butler was observed

handing out literature to prospective voters on behalf of Pierre at the Silver Spring early

voting center. Id., Ex. B at ¶11 6-7; Ex. C at ¶J 3-4.

11. Judge Berry and Ms. Rogers both overheard Ms. Butler speaking to

prospective voters and falsely representing to the prospective voters that "Ms. Pierre is

the only progressive judge on the ballot." Id., Ex. B atJ 8; Ex. Cat ¶ 5.

12. Ms. Rogers heard Ms. Butler repeatedly state approximately three (3) to

four (4) times to at least ten (10) prospective voters that "Ms. Pierre is the only

progressive judge on the ballot." Id., Ex. C at ¶ 5.

13. Separately, Judge Berry heard Ms. Butler represent Pierre as the only

"judge" endorsed by Progressive Maryland. Id., Ex. B at ¶ 9.

The Official 2020 Primary Election Results for Montgomery County can be found on the Maryland State
Board of Elections website
16-1 html).
 14. In the presence of both the prospective voters and Ms. Butler, Judge Berry

corrected the misrepresentation as to Pierre's identity as "judge." Id., Ex. B at ¶ 10.

Specifically, Judge Berry told Ms. Butler that Pierre is not a judge. Id.

15. After Judge Berry corrected the misrepresentation as to Pierre's identity as

a "judge," Ms. Butler continued to repeat the same phrase to prospective voters, "Ms.

Pierre is the only progressive judge on the ballot" louder and with greater conviction.

Id., Ex.Cat ¶6;see also, id., Ex.Bat 1111.

ARGUMENT

The Maryland Rules of Procedure provide that a temporary restraining order

should be granted when "it clearly appears from specific facts shown by affidavit or other

statement under oath that immediate, substantial, and irreparable harm will result to the

person seeking the order before a full adversary hearing can be held on the propriety of a

preliminary or final injunction." See Maryland Rule 15-504(a). Thus, a primary purpose

of issuing injunctive relief is "to maintain the status quo pending a decision as to a

justifiable controversy." Harford County Educ. Ass 'n v. Board of Ed. of Harford County,

281 Md. 574, 585 (1977).

The proceeding however, can be expedited as the circumstances require when

judicial relief is sought pursuant to under Md. Code Ann., Elec. Law § 12-202. See id. at

§ 12-203(a)(1).

Maryland courts apply the following four factor tests when determining whether

temporary restraining orders or preliminary injunctions should be granted: (1) the

likelihood that the plaintiff will succeed on the merits; (2) whether the plaintiff will suffer

greater injury by denying the injunction than would result if it is granted; (3) whether the

5
plaintiff will suffer irreparable injury unless the injunction is granted; and (4) the public

interest. See In re Application of Kimmer, 392 Md. 251, 260 (2006). Application of

these four factors to the dispute between Plaintiffs and Defendant decidedly favors the

issuance of the injunctive relief requested.

A. Plaintiffs Are Likely To Succeed On The Merits.

Plaintiffs have provided evidence in the form of a Verified Complaint along with

the affidavits of Judge Berry and Mary Agnes Rogers (incorporated herein by reference)

to establish that Plaintiffs will succeed on the merits of their claims for declaratory and

injunctive relief, and judicial relief pursuant to Md. Code Ann., Elec. Law § 12-202.

With regard to the factor of likelihood of success on the merits, a party seeking

the interlocutory injunction must establish that it has a real probability of prevailing on

the merits. Ehrlich v. Perez, 394 Md. 691, 708 (2006).

Title 18 of Maryland Rules addresses the ethical requirements of candidates and

applicants for judicial office, who participate in political activities. Specifically, Rule 18-

404.4(d) provides in relevant part,

A candidate for election. (d) As to statements and materials made or

. .

produced during a campaign:

(1) shall review, approve, and be responsible for the content of

all campaign statements and materials produced by the candidate
or by the candidate's campaign committee or other authorized
agents;

(2) shall take reasonable measures to ensure that other persons do

not undertake on behalf of the candidate activities that the
candidate is prohibited from doing by this Rule;

(5) shall not knowingly, or with reckless disregard for the

truth, misrepresent the candidate's identity or qualifications,
 the identity or qualifications of an opponent, or any other fact, or
make any false or misleading statement...

Md. Rule 18-104.4 (emphasis added).

On October 26, 2020, at the Silver Spring early voting center located at the Silver

Spring Civic Center, two witnesses (Judge Berry and Mary Agnes Rogers) independently

heard Pierre's authorized agent, Yvonne Butler, represent to prospective voters that

Pierre is a "judge" and that "Ms. Pierre is the only progressive judge on the ballot."

Verified Compl. at Ex. B at ¶J 8-9; Ex. C at ¶ 5. After Judge Berry corrected Ms. Butler

by informing her that Pierre is not a judge, Ms. Butler continued to repeat the same

phrase to prospective voters, "Ms. Pierre is the only progressive judge on the ballot"

louder and with greater conviction. Id. at Ex. C at ¶ 6; see also, Ex. B at ¶ 10-11.

Pierre, as candidate for election, is responsible for the conduct of her authorized

agent, Ms. Butler, who made misrepresentations as to Pierre's identity. See Rule 18-

104.4(d)(1). As an authorized agent for Pierre, Ms. Butler knowingly and with reckless

disregard for the truth, misrepresented Pierre's identity as "judge" and continued to do so

after the misrepresentation was brought to Ms. Butler's attention. Id. at 18-1 04.4(d)(5).

Further, given that Election Day is just days away, there is no other timely and

adequate remedy other than to seek judicial relief by way of a temporary restraining

order. It is undisputed that the misrepresentation by Defendant's authorized agent as to

Defendant's identity relate to the election and that such misrepresentations are unlawful.

Defendant's act andlor omissions by her authorized agent may change the outcome of the

election as the record indicates that this is a highly contested and close election where

every vote matters. See Verified Compi. at Ex. A (Official 2020 Primary Election

Results for Montgomery County). Accordingly, Plaintiffs are likely to succeed on the

7
merits of demonstrating a violation of Rule 18-104.4 and entitlement to relief under Md.

Code Ann., Elec. Law § 12-202.

B. Balance of Convenience Factor Weighs in Favor of Plaintiffs.

Plaintiffs seek a temporary restraining order to prevent Defendant from further

representing or having her authorized agents represent to prospective voters (or other

persons) that Defendant is a judge. Based on the facts alleged in the Verified Complaint,

and the affidavits filed and of record, Defendant and her authorized agents should not be

making such representations to prospective voters as it is a misrepresentation as to

Defendant's identity in violation of Rule 18-104.4. Requiring Defendant and her

authorized agents to comply with the Rules and refrain from making misrepresentations

regarding Defendant's identity will not inconvenience Defendant as she is under a legal

obligation to comply with the law in any event.

C. Plaintiffs Will Suffer An Irreparable Injury Unless The Temporary

Restraining Order And Preliminary Injunctive Relief Are Issued.

There will be immediate, substantial and irreparable harm to Plaintiffs if Defendant

and her authorized agents are permitted to continue misrepresent Defendant as a judge to

prospective voters. The election has been highly contested and the votes received by the

candidates will likely result in a close outcome. Further misrepresentations that Defendant

is a judge will likely influence prospective undecided voters to vote for Defendant and take

away votes that the Sitting Judges would have otherwise received.

In examining irreparable injury, the Circuit Court may consider "the necessity to

maintain the status quo" pending a final outcome. Lerner v. Lerner, 306 Md. 771, 791

(1986). Here the status quo would be to preserve and protect the integrity of the judicial

election in Montgomery County and ensure the fair outcome of the results. Accordingly, a

[I]
temporary restraining order and preliminary injunction are required in order to ensure that

Plaintiffs do not suffer any further ineparable injury, loss, and damage as a result of

Defendant's misrepresentations as to her identity in violation of the Rules.

D. The Public Interest Weighs In Favor Of The Temporary And Preliminary

Injunctive Relief.

The public interest will not be disserved by the Court granting an interlocutory,

temporary restraining order in this case. Specifically, it is in the public's interest to

discourage judicial candidates from making misrepresentations regarding their identity to

gamer votes in a contested election. Further the public has an interest in preserving the

integrity and fairness of judicial elections.

E. Plaintiffs Seek A Bond Waiver As There Are No Monetary Damages That

Could Result.

Generally, a temporary restraining order is not granted without consideration of a

bond in an amount, approved by the court for damages that the party enjoined may be

entitled as a result of the injunction. Md. R. 15-303(a). Here, Defendant will not suffer

any monetary damages as a result of a temporary restraining order, as the order would

simply enjoin Defendant and her authorized agents from misrepresenting Defendant's

identity. In the alternative, the bond should be nominal.

F. Plaintiffs Provided Defendant With Notice Of The Date And Time That The
Motion For Temporary And Preliminary Injunctive Relief Would be Filed.

A temporary restraining order is not granted without notice unless the applicant or

the applicants' attorney certifies to the court in writing, and the court finds, that specified

efforts commensurate with the circumstances have been made to give notice pursuant to

Rule 15-504(b). In this instance, notice has been given to Defendant (see attached Rule 1-

351 and 15-504(b) Certification). Plaintiffs' counsel have taken reasonable steps, including

sending correspondence via electronic mail to notify Defendant of the date and time that the

instant Motion will be filed. Accordingly, the criteria for a temporary restraining order

having been fully met, Plaintiffs respectfully request that a temporary restraining order and

preliminary injunctive relief be issued in the form submitted with this Motion.

CONCLUSION

For all of the foregoing reason, Plaintiffs' Motion for a Temporary Restraining

Order and Preliminary Injunctive Relief should be granted.

Respectfully submitted,

J. STEPHEN MCAULIIE
ROALYN TANG
MILES & STOCKBRIDGE, P. C.
11 North Washington Street, Suite 700
Rockville, Maryland 30850
(301) 762-1600
smcauliffemilesstockbridge. com
rtang@milesstockbridge. corn

Attorneys for Plaintiffs

Elect Sitting Judges Montgomery County Slate and
The Honorable Bibi M Berry, David A. Boynton,
Christopher C. Fogleman and Michael I McAulzffe

10
 MARYLAND RULE 1-351 AND 15-504(B) CERTIFICATION

On Tuesday, October 27, 2020 (6:06 PM), undersigned counsel advised

Defendant via e-mail (mpierrelaw@gmail.com and MarylinForMarylandgmai1.com)

that Plaintiffs' counsel would appear in the Circuit Court for Montgomery on

Wednesday, October 28, 2020 upon the availability of a judge. See Exhibit 1.

Additionally, undersigned counsel's assistant (Karen Jett) called Defendant on

Tuesday, October 27, 2020 at 6:10 PM at (301) 279-9020 (the phone number on record

for Defendant with the Maryland State Board of Elections) and left a message directing

Defendant to check her email regarding the email and letter (Ex. 1) containing a copy of

the Verified Complaint, Case Information Sheet, and Motion for a Temporary

Restraining Order and Preliminary Injunctive Relief and Memorandum in Support

Thereof.

I solemnly affirm, on this 28th day of October, 2020, under penalties of perjury

that the contents of the foregoing certification are true uponj'ny personal knowledge.

J7 tenhei McAuliffe(III
 REQUEST FOR A HEARING

Plaintiffs request a hearing on the Motion for a Temporary Restraining Order and

Preliminary Injunctive Relief.

CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of October, 2020, a copy of the foregoing was

e -mailed and mailed via first class mail to the following:

Marylin Pierre
P.O. Box 1182
Rockville, MD 20850
MarylinForMaryland@gmail. corn

Marylin Pierre
932 Hungerford Drive, #4b
Rockville, MD 20850
mpierrelawgmai1.com

Marylin Pierre
2 Treeworthy Road
Gaithersburg, MD 20878
Jett, Karen

From: McAuliffe, Stephen

Sent: Tuesday, October 27, 2020 6:06 PM
To: MarylinForMaryland@gmaiLcom; mpierrelaw@gmail.com'
Cc: McAuliffe, Stephen; Jett, Karen
Subject: Elect Sitting Judges Montgomery County Slate, et al. v. Marylin Pierre
Attachments: Letter to Marylin Pierre.pdf; Civil Information Sheet.pdf; Complaint with exhibits.pdf;
Motion for TRO - Memo 4827-0221-3584 v.1.pdf

Ms. Pierre,

Please see the attached letter, Complaint, Civil Information Sheet and Motion for Temporary Restraining Order and
Preliminary Injunctive Relief.

J. Stephen McAuliffe III

Miles & Stockbridge
direct: +1 (301) 517-4829 cell: +1 (301) 461-4933
We Go the Extra Mile

Exhibit
1
 L
J. Stephen McAuliffe, Ill
(301) 517-4829
smcauIiffemitesstockbridge.com

October 27, 2020

VIA E-MAIL
Marylin Pierre
P.O. Box 1182
Rockville, MD 20850
MarylinForMaryland@grnail . corn
mpienelaw@gmail.com

Re: Elect Sitting Judges Montgomery County Slate, et al. v. Marylin Pierre
In the Circuit Court for Montgomery County, Maryland

Ms. Pierre:

Enclosed, please find a copy of the Verified Complaint, Case Information Sheet, Motion
for a Temporary Restraining Order and Preliminary Injunctive Relief and Memorandum in Support
Thereof that we intend to file tomorrow morning at 8:30 am.

Pursuant to Maryland Rules 1-351 and 15-504(b), I am notifying you that we will be
requesting that the Court hear and rule on the Motion for a Temporary Restraining Order and
Preliminary Injunctive Relief tomorrow, Wednesday, October 28, 2020, as expeditiously as
possible.

My understanding is that a judge from an outside jurisdiction will be hearing the matter,
and we will inform you via email (Mary1inForMary1andgmail.com and
mpierrelaw@gmail.com) and by telephone ((301) 279-9020) of the time the judge will be available
to hear this matter as soon as that information becomes available to us.

Thank you.

E closures

11 N WASHINGTON STREET, SUITE 700

---c ROCKVILLE, MD 20850-4229
':.
301.7621600
oWONMr.,sc,.cc-.rn
milesstockbridge corn
;,:-.,--,r'-
 IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

ELECT SITTING JUDGES

MONTGOMERY COUNTY SLATE,
ETAL,
Plaintiffs,
V. Case No.

MARYLIN PIERRE,

Defendant.

TEMPORARY RESTRAINING ORDER

Upon consideration of Plaintiffs' Motion for a Temporary Restraining Order and

Preliminary Injunction and Memorandum of Law in Support Thereof, the Verified

Complaint, the Affidavits of Judge Bibi M. Berry and Mary Agnes Rogers, the exhibits

attached thereto, and the certification of notice to Defendant, this Court finds that

Defendant Marylin Pierre, a candidate for election, through her authorized agent (Yvonne

Butler) misrepresented to prospective voters that Defendant Marylin Pierre is a judge at

the early voting center located at the Silver Spring Civic Building on the afternoon of

October 26, 2020 in violation of Maryland Rule 18-1 04.4(a)(d).

The Court finds that without the issuance of a Temporary Restraining Order,

Plaintiffs will be subject to continuing, immediate, substantial and irreparable harm in

connection with the November 3, 2020 judicial election, which cannot be adequately

remedied by monetary damages; it is this _________ day of October, 2020:

ORDERED, that the Motion for Temporary Restraining Order and Preliminary

Injunctive Relief is GRANTED; and it is further

 ORDERED, that Defendant Marylin Pierre and her authorized agents shall be

enjoined and prohibited from representing to anyone including prospective voters that

Defendant Marylin Pierre is a judge; and it is further

ORDERED, that pursuant to Md. Rule 15-504(d), this Temporary Restraining

Order shall be served promptly on the person to whom it is directed, but it shall be

binding on that person upon receipt of actual notice of it by any means, and it is further

ORDERED, that pursuant to Md. Rule 1 5-504(c)(4), that a party or any person

affected by this Order may apply for a modification or dissolution of this Order on two

days' notice, or on such shorter notice as the Court may prescribe, to the party who

obtained this Order; and it is further

ORDERED, that pursuant to Md. Rule 1 5-504(c)(5), that unless extended by

further Court Order, this Temporary Restraining Order shall expire on

and it is further

ORDERED, that for good cause shown, this Court shall extend this Order for a

period up to and including an additional _________ days; and it is further

ORDERED, that pursuant to Md. Rule 15-504(c) that this Temporary Restraining

Order shall promptly be filed with the Clerk's Office; and it is further

ORDERED, pursuant to Md. Rule 15-503(c), that the request to waive bond is

GRANTED and bond or other security is WAIVED, because the Court is satisfied that

there is no likelihood that Defendant will incur any damage or loss arising from the relief

granted; and it is further

ORDERED, that this matter shall be set for a Preliminary Injunction Hearing on

2020 at a.m. / p.m.

Judge, Circuit Court for Montgomery County,
Maryland