Weil, Gotshal & Manges LLP January 2012 For City Council's Eyes Only

Removal Hearing for Municipal Judge Phyllis Lister BrownJanuary 18, 2012 Hearing before Dallas City Council

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Introduction

￭ Judge Brown currently serves with distinction on the Municipal Court as a full-time municipal judge and has served in that capacity for nine (9) years.

￭ Judge Brown now seeks election to a position on the 162nd District Court.

￭ The City Attorney has informed Judge Brown that she has forfeited, or will be removed from, her judgeship. The provision of the Dallas City Charter that has been cited in support of Judge Brown’s removal does not apply to Municipal Judges.

￭ The Dallas City Charter does not require or permit Judge Brown’s removal from her Municipal Judgeship.

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The Dallas City Charter Expressly Addresses Removal of Municipal Judges￭ The Municipal Judge Removal Provision is contained within

Chapter VIII of the City Charter, which is entitled “Municipal Courts.”

￭ The provision reads, in its entirety, as follows:￭ “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.”

-Dallas City Charter, Ch. VIII, § 4A

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Dallas City Charter’s City Officer Resign to Run Provision Does Not Address Municipal Judges￭ The City seeks to remove Judge Brown under Chapter III,

Section 17(a) (the “City Officer Resign to Run Provision”).￭ The provision is contained within Chapter III of the City

Charter, which is entitled “City Council.”￭ The City Officer Resign to Run Provision states, in part, as

follows:￭ 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 citybecomes a candidate for nomination or election to any public office, her or she shall immediately forfeit his or her place or position with the city.

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The City Officer Resign to Run Provision Does Not Apply to Judge Brown

￭ Judge Brown, as a municipal judge, is not an “appointive officer of the city” and does not hold a “position with the city.”

￭ A municipal court is part of the judiciary of the State of Texas.

￭ A municipal judge is a judicial officer of the State of Texas, not of the locality in which the municipal court sits.

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A Municipal Court is Part of the State Judiciary System

￭ The Dallas Municipal Court is not an administrative agency of the City of Dallas; rather, it is an independent court established by the Texas legislature.

￭ Municipal Courts in Texas were established by the legislature by an 1899 statute entitled, “An act to establish, and create in each of the cities, towns and villages of this State a State court to be known as the corporation court in each city, town or village and to prescribe the jurisdiction and organization thereof …”

-S.S.B. No. 55, 26th Leg. Ch. 33, 1899 Tex. Gen Laws 40, 44 (the “1899 Municipal Court Act”) (emphasis added)

• The substance of the 1899 Municipal Court Act is now codified in Chapters 29 and 30 of the Texas Government Code.

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The City Does Not Create, and Has Only Limited Delegated Powers Concerning, Municipal Courts

￭ “The legislature cannot delegate its inherent, exclusive powers …. The authority to establish courts is one of those inherent, exclusive powers.”

Martin v. State, 13 S.W.3d 133, 137 (Tex. App.—Dallas 2000, no pet. hist.)

￭ The Texas legislature delegated a limited set of powers to the governing bodies of home rule cities [such as Dallas] which include:￭ the power to decide whether the judges of such courts will be elected or

appointed;￭ the power to set salaries for municipal judges [but such salaries may not be

diminished during the judge’s term];￭ the power of appointment and reappointment of municipal court judges.-Tex. Gov’t Code Sections 29.004, 30.0006; Dallas City Charter Ch. II, Section 2; Dallas City Code, Section

13-3

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Judge Brown is a Judicial Officer of the State of Texas

￭ A Municipal Judge is not subject to the oversight and control of the City Council or the City Manager.

￭ A Municipal Judge is subject to the oversight and control of the State Commission on Judicial Conduct. -Tex. Code of Judicial Conduct, Canon 6(C)

￭ A Municipal Judge is governed by the Texas Code of Judicial Conduct. –Tex. Const., Art. V, Section 1(a); Tex. Gov’t Code, Section 33.002

￭ A Municipal Judge has the independent authority to create his or her own procedural rules. –Tex. Gov’t Code, Section 30.340.

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Thompson v. City of Austin￭ The City Attorney’s supposed support for its contention:

“[Judge Brown] is also an officer of the City.” See Thompson v. City of Austin, 979 S.W.2d 676, 682 (Tex. App.—Austin 1998, no pet.) (holding that an Austin municipal judge was an officer). City’s Plea to the Jurisdiction at 15.

￭ The Thompson court did not find a municipal judge to be an “officer of the City.” The Thompson court actually held that,￭ “Entrusted with independent and sovereign powers,

judges are public officers and public officers cannot be employees.” Thompson, 979 S.W.2d at 682 (emphasis added).

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Thompson v. City of Austin (cont’d)

￭ The Thompson court emphasized limitations on the city council’s delegated powers concerning Municipal Judges:￭ “A judge must be independent from the outside influence of the

other branches of government . . . [T]he very nature of the office demands that a municipal judge be independent of the Council in exercising this sovereign power. … In exercising [her] powers, the municipal judge’s actions may not be reviewed by any other party, including the Council. The Council’s lack of control results naturally from the separation of powers doctrine and sovereign nature of both the executive and judicial branches. The Council, which has been endowed with executive and administrative powers, does not exercise control over the independent municipal court …”

Thompson, 979 S.W.2d at 692-83.

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Judge Brown is not Subject to Removal Under the Municipal Judge Removal Provision

￭ Judge Brown meets all of the “qualification or requirements” as the qualifications for judges of municipal courts in Texas are:￭ Texas residency;￭ United States citizenship;￭ status as a licensed attorney in good standing;￭ two or more years experience in the practice of law in Texas.--Texas Government Code Section 30.00006(c)

￭ The Dallas City Charter imposes no additional qualifications on Municipal Judges, requiring only that each Municipal Judge “be a practicing attorney of good standing.”

–Dallas City Charter, Ch. VIII, Section 4

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The City Officer Resign to Run Provision Conflicts With the Judicial Removal Provision

￭ The Judicial Removal Provision specifically applies to municipal judges alone, whereas the City Officer Resign to Run Provision applies generally to all “appointive officers of the city.”

￭ Where there are general and specific provisions, the specific provision should govern.

￭ The provisions conflict and cannot be harmonized because the Judicial Removal Provision requires a hearing and a finding that municipal judge “failed to comply with . . . any qualification or requirements . . .” before removal, whereas the City Officer Resign to Run Provision mandates an automatic and immediate forfeiture of an officer’s position.

￭ The City Officer Resign to Run Provision is not a “qualification or requirement” for a Municipal Judge and thus cannot form the basis for any removal proceeding against Judge Brown.

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The City Suffers No Harm if Judge Brown Retains Her Judgeship

￭ No interest of the City will be harmed if a municipal judge retains her position while running for another judgeship.￭ Virtually all other Texas judges are elected.￭ Judicial campaigns by sitting judges are commonplace.

￭ Real harm would occur if the City exercised control over the Municipal Court. ￭ Characterizing municipal judges as officers of the City would

diminish public confidence in an independent judiciary.

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CONCLUSION