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Dallas Asks High Court|to Help Remove Judge

DALLAS (CN) - Enjoined from removing a municipal judge who is running for a seat on Dallas County district court, the city of Dallas asked the state Supreme Court to intervene.

Dallas says that the city charter empowers it to remove municipal judge Phyllis Lister Brown.

"On December 13, 2011, Brown became a candidate for judge of the 162nd Judicial District Court," according to its petition filed Friday. "Thus, Brown forfeited her office of municipal judge under the charter forfeiture provision. Brown did not resign or vacate the bench. Because Brown obviously intended to continue in office, the city began removal proceedings to enforce the city charter by giving her notice that the council would consider her removal."

After a hearing in January where Brown presented her arguments, the city council voted in favor of an ordinance to remove her immediately.

Dallas argues that Brown lacks jurisdiction for declaratory relief, and that the trial court and 5th District Court of Appeals erroneously found otherwise.

The courts allegedly should have considered whether Brown had actually pleaded the city had exceeded its powers under the charter or state constitution.

"Brown has not pleaded an actual ultra vires act or shown that there is a valid waiver of immunity from suit," the petition states. "Failure to review the Dallas court's opinion ensures a multiplicity of suits of this nature challenging governmental official's discretionary appointment powers. In fact, Brown's suit is not the first case that the city parties or other municipalities have had to defend concerning the appointment and removal of municipal judges."

In August, four other municipal judges sued the city after the city council passed an ordinance hiring new judges, effectively firing them. The judges alleged the city violated their judicial independence and city codes by refusing to to renew their appointments to the bench.

Dallas contends that the 5th District Court failed to use the correct standard of review in considering whether Brown pleaded a valid ultra vires action, that it considered only the mention of an ultra vires act.

Precedence allegedly requires more than just the mention of a waiver of immunity to establish a waiver. The city also says the 5th District Court mistakenly refused to dismiss Brown's request for declaratory relief because Mayor Mike Rawlings and the city council had the authority to remove her from office and that the removal ordinance in place is valid.

"There is legislative authority in the Government Code that permits a city council to remove a municipal judge for the reasons and by the procedure set forth in the city charter," the petition states. "The city of Dallas has such a charter removal provision. Also, neither article II, section 1 (separation of powers) nor article XI, section 5 (powers of a home-rule municipality) of the Texas Constitution deprived the Council Members of the authority to remove a municipal judge. In fact, Brown does not deny that a Dallas municipal judge can be removed by the city council." (Parentheses in original.)

Dallas also says there is no subject-matter jurisdiction for Brown's request for declaratory relief because the city, the mayor, and the other members of the city council retained their immunity from suit for Brown's request under the Uniform Declaratory Judgments Act.

The appellate court's ruling "not only makes bad law, but also makes bad policy," Dallas says.

"The court of appeals' erroneous decision will have significant consequences beyond this case," it adds. "To allow the court of appeals to alter the standard of review will subject government officials to litigating lawsuits that merely allege there was an ultra vires act, without any factual or legal basis demonstrating there was an ultra vires act. This standard would allow plaintiffs to circumvent sovereign immunity from suit by conclusory pleading, and would be a major deviation from this court's precedent in establishing the standard of review for a plea to the jurisdiction."

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