NO. ) ') ~o q b D S --------~------------------

TIMOTEO F. GONZALEZ, DAVID INDORF, RUTH C. LOGAN

and CHERYL WILLIAMS Plaintiffs,

v.

)( )( )( )( )( )( )(

MIKE RAWLINGS, MAYOR, )( COUl'JCILMEMBER JERRY R. ALLEN, )( COUl'JCILMEMBER MONICA R. ALONZO, )( COUNCILMEMBER TENNELL ATKINS, )( COUl'JCILMEMBER DWAINE R. CARA WA Y)( COUNCILMEMBER CAROLYN DA VI )( COUNCILMEMBER SANDY GREYS ON, )( COUNCILMEMBER VONCIEL JONES HILL,)( COUNCILMEMBER ANGELA HUNT, )( COUNCILMEMBER DELIA JASSO, )( COUNCILMEMBER SHEFFIE KADANE, )( COUNCILMEMBER LINDA KOOP, )( COUNCILMEMBER ANN MARGOLIN, and )( COUNCILMEMBER PAULINE MEDRANO )(

DALLASCOUl~TY,TEXAS

JUDICIAL DISTRICT --

PLAINTIFFS' ORIGINAL PETITION AND APPLICATION FOR TEMPORARY AND PERMANENT INJUCTION

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs Judge Timoteo F. Gonzalez, Judge David C. Indorf, Judge Ruth C. Logan and

Judge Cheryl D. Williams ("Plaintiffs" or "Judges") respectfully files this, their Original Petition

and Application for Temporary and Permanent Injunction and, for cause of action, would show

as follows:

I. INTRODUCTION

Plaintiffs seek injunctive relief to preclude the Dallas City Council from purporting to

publish the Ordinance appointing Municipal Judges as the result ofthe vote taken by City

Council on August 22,2012 because the Dallas City Councilmembers violated the City of

Dallas Code Section 13.5 regarding the appointment and evaluation of municipal judges.

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The Judges currently serve on the Municipal Court as full-time judges and have served in

that capacity from two years to thirteen years. They have consistently received positive

reviews. The City Council has a history of violating judges' rights and removing them from

the bench. In 2006, the City Council attempted to wrongfully remove another Municipal

Judge, Elizabeth Frizell, from her position on the Municipal Court because she was a

candidate for a judgeship in Dallas County Criminal Court. In January, 2012, the City

Council attempted to wrongfully remove another Municipal Judge, Phyllis Lister Brown,

from her position on the Municipal Court because she is a candidate for a judgeship of the

162nd District Court. In this instance, the City Council has gone even further by going

outside the law and manipulating the independence of the judiciary.

Accordingly, the Judges seek from this Court (1) a declaration that the city

council did not follow the Dallas City Code, and (2) injunctive relief precluding the City Council

from publishing the Ordinance appointing Municipal Judges as the result of the vote taken by

City Council on August 22, 2012.

II. DISCOVERY CONTROL PLAN

1. Plaintiffs request that discovery be conducted in this case under a Level Three

discovery control plan.

III. PARTIES

2. Timoteo F. Gonzalez is an individual residing at 8406 Flower Meadow Drive,

Dallas, Texas.

3. David C. Indorfis an individual residing at 7602 Eastern Avenue, Dallas, Texas

75209. (Mailing address: 5600 W. Lovers Lane, Suite 116-221, Dallas, Texas 75209).

4. Ruth C. Logan is an individual residing at 5624 Ventana Trail, Dallas, Texas.

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5. Cheryl D. Williams is an individual residing at 8553 Quicksilver Dr., Dallas,

Texas, 75249.

6. Each of the 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 (the "City Council Defendants") is a member of the City Council for the City of Dallas,

the body which Plaintiff believes will take the actions hereby sought to be enjoined. The City

Council Defendants may be served with process by serving the City of Dallas Secretary Rosa

Rios at 1500 Marilla Street, Dallas, Texas 75201.

IV. JURISDICTION & VENUE

7. 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 Plaintiffs seek declaratory

and injunctive relief. The Court has personal jurisdiction over Defendants because the City

Council Defendants each reside in Dallas County, Texas.

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

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

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

County, Texas.

V. FACTUAL BACKGROUND

A. The Judges Currently Serve as a Municipal Court Judges.

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9. The Judges were last appointed to the Municipal Court in the City of Dallas by

the Dallas City Council on or about June 23,2010. Judge Williams has served the City of Dallas

as a full-time judge for the past 13 years, prior to that she served as an associate judge for 4

years. Judge Gonzalez has served the City of Dallas as a full-time judge for the past 6 years, and

prior to that he served as an associate judge fori 0 years. Judge Indorfhas served the City of

Dallas for the past 2 years, one prior appointment as a full-time judge and 17 years as an

associate judge. Judge Logan has served the City of Dallas as a full-time judge for the past 2

years, and prior to that she served as an associate judge for 8 years.

10. During their tenure, the Judges have consistently received positive reviews of

their performance from defense attorneys, and the Chief Administrative Judges Michael O'Neal,

Jay Robinson and C. Victor Lander.

11. At no time has any disciplinary action been taken against the Judges in their

capacity as Municipal Judges, or in any other capacity.

12. As authorized by Chapter 30 of the Texas Government Code, the Dallas City

Charter provides that Municipal Court judges are evaluated by the City Council and considered

for reappointment every two years. See Tex. Gov't Code Ann. 30.0006.

B. Evaluation Process for Municipal Court Judges

13. The Judicial Nominating Commission (hereafter referred to as "JNC" or

"Commission") was created pursuant to Section 13-5.1 of the Dallas City Code, which provides

that 15 members will be appointed by the city council, with each city council member appointing

one member of the Commission. In addition, the Dallas city attorney is an ex-officio voting

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member of the JNC and the mayor shaH appoint the chair of the Commission and the full city

council shall appoint the vice-chair.

11. Section 13-5.2 of the Dallas City Code governs the duties and responsibilities of

the JNC, which is an advisory body to the city council, and provides that the JNC shall

recommend nominees to serve as full-time and associate governmental judges; and make report

and recommendations to the city council ad hoc legislative committee on the status of the

selection process for municipal judges.

12. On May 21,2012, the JNC interviewed candidates for the 18 positions of full-

time and 27 positions of associate municipal judge for the City of Dallas. Pursuant to the

requirements of the Dallas City Code Section 13-5.2 (d) and (e), from the interviews and

deliberations, the JNC submitted two lists to the Dallas City Council: one list contained the

candidates for full-time municipal judge and one list for candidates for associate municipal judge

with 18 nominees for the vacancies of full-time judge, and 27 nominees for the vacancies of

associate judge, with Number I being the highest ranking. Plaintiffs were all included in the 18

full-time nominees submitted to the Dallas City Council Defendants.

13. The ad hoc legislative committee, as well as the Dallas City Council, is required

to follow the law. Dallas City Code, Section 13-5.2(e), governs the selection of Municipal

Judges and states,

"Upon receiving the JNC recommendation of nominees, the city council ad

hoc legislative committee may interview one or more the nominees. If not

satisfied with any number of the nominees, the ad hoc legislative committee

may request that the commission recommend a specified number of

additional nominees to the committee. After deliberation, the ad hoc

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legislative committee shan forward to the fun city council a number of

nominees equal to 150 percent of the number of vacancies in the office of fun­

time or associate municipal judge, rounded up to whole numbers. The

nominees must be divided into two groups, one for full-time judges and one

for associate judges, with the members of each group being ranked in order

or preference by the ad hoc legislative committee, with Number 1 being the

highest ranking. Rankings of the nominees by the judicial nominating

commission must also be forwarded to the fun city council.

14. Section 13-S.2 (f) of the Dallas City Code further requires:

"Upon receiving the ad hoc legislative committee's recommendations of

nominees, the city council shall select one nominee to fill each vacancy.

Before making a selection, the city council may interview one or more of the

nominees. If not satisfied with any number of the nominees, the city council

may, in its discretion, fill whatever vacancies it desires and request that the

judicial nominating commission recommend to the ad hoc legislative

committee a specified number of additional nominees for the unfulfilled

vacancies."

IS. Rather than follow the Dallas City Code, the ad hoc legislative committee

failed to request further nominees from the ad hoc legislative committee as required by

law. If the ad hoc legislative committee was not satisfied with the nominees submitted by

the INC, Dallas City Code Section 13-S.2(e) required the ad hoc legislative committee to

request that the Commission recommend a specified number of additional nominees to

the Committee. Instead, Defendants decided to continue what appears to be a pattern of

overstepping its authority and ignoring the very ordinances designed to protect separation

of powers provided by the Texas Constitution. In fact, Defendants contacted individuals

who were not on the list of 18 candidates. The ad hoc legislative committee flagrantly

disregarded the mandates of the City Code and by-passed the INC, whose very purpose is

to protect from this type of random and inexplicable conduct.

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16. Upon receiving the two lists, one for full-time municipal judge and one for

associate municipal judge, the ad hoc legislative committee then interviewed not only the 18

candidates as provided by law, but they also ignored the provisions of the Dallas City Code and

interviewed an additional four (4) candidates with no explanation or justification. This act was

in direct violation of Dallas City Code 13-5.2 (e), which requires that the ad hoc legislative

committee request additional nominees from the JNC if they are not satisfied with the nominees

presented. Instead the ad hoc legislative committee made the unprecedented and illegal decision

to recommend additional candidates of their own choosing. In the past, the ad hoc legislative

committee has always followed the recommendations of the JNC and has always chosen Judges

from the list of 18 nominees provided. Not only was the action illegal, but it raises concern for

the veracity and transparency of the process by completely ignoring the process to invoke the

review by the JNC for additional review of candidates and recommendations.

C. Violation of Separation of Powers

17. Article 2 of the Texas Constitution provides for the powers of government stating

that the government is to be divided into three distinct departments: the legislature, the executive

and the judicial, and furthennore, "no person, or collection of persons, being of one of these

three departments, shall exercise any powers properly attached to either of the others".

18. On or about June 15,2012 and August 1,2012, the City Manager's office

presented an overview of the Dallas Municipal Court System to the ad hoc legislative committee

for judicial appointments per the committee's request. Assistant City Manager A.C. Gonzalez

presented his power point presentation, which focused primarily on the lack of revenue raised in

the municipal courts and implied the ruling of the Municipal Judges negatively impacted the

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city's revenue. Mr. Gonzalez further suggested that changes should be made to the judiciary.

Thereafter, and throughout the process of the appointment of City of Dallas Municipal Judges

the subject of this lawsuit, it became apparent both by actions and words that the City Council, in

particular the ad hoc legislative committee, were going to attempt to assert requirements on the

judges regarding the raising of revenue for the City of Dallas. This again represents illegal

action by the Defendants by requiring, or purporting to require, that the judges commit to

assessing maximum fines or maximum deferred fees an all traffic cases, regardless of the merits

or facts of the case, as a condition to their appointment.

19. In fact, within days of the presentation, Councilwoman Angela Hunt was quoted

in the Dallas Morning News, stating "'we want judges to promulgate some rules that embody

the recommendations ffrom the City Manager's officeJ ... that's key. Ifwe need to shake up

our courts and thejudges that we have sitting right now, we're going to do it' regarding

guiding principles to judges on how they should mete out justice".

20. Section 720.002(a)(2) of the Texas Transportation Code prohibits establishing or

maintaining, formally or informally, a plan to evaluate, promote, compensate, or discipline a

municipal court judge according to the amount of money the judge collected from persons

convicted of a traffic offense. Clearly, the actions and statements of the City Council members,

particularly the ad hoc legislative committee, suggest that the evaluations of the judges in the

appointment process were substantially based on the amount of revenue generated by the judges.

21. Section 720.002 (b)(2) of the Texas Transportation Code prohibits requiring or

suggesting to a municipal court judge that the judge is required or expected to collect a

predetermined amount of money from persons convicted of traffic offenses within a specified

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period. The City Manager's presentation influenced the nomination and review of the Dallas

municipal judges and their selection by the ad hoc legislative committee.

22. Further, as a direct result of the Assistant City Manager's presentation,

Councilmembers Hunt and Jasso, as co-chairpersons of the ad hoc legislative committee then

sent to each judge a list of thirteen recommendations asking each candidate for their responses.

The recommendations were copied and pasted into an email directly from the recommendations

of the Assistant City Manager. The recommendations were, inter alia, as follows: (a) establish

a tiered fine structure that incentivizes defendants to respond within the first 21 days; (b) require

that a cash or surety bond be posted to secure appearances in trial for all defendants who do not

respond wi thin 21 days or who fail to appear for a trial setting; (c) deferred disposition fees

should be same amount as the window fine plus court costs; (d) consider having our web site be

the place where a defendant can get the best possible deal on a deferred disposition; (e) if they

pay within 21 days; limit motions for continuance to one per side; (f) and disallow off-docket

motions for trial settings for defendants who do not respond within 21 days or who fail to appear

for a trial setting (attached hereto and incorporated by reference as Exhibit 1).

23. As required for further consideration for appointment, each full-time Judge

responded to the thirteen recommendations by the City Council with the applicable law. It was

the duty of a Judge to follow the law, for which each has taken an oath. More importantly, the

judges were being asked to commit to results and to predispose of cases, as well as to publicly

comment about a pending or impending proceeding which may come before the judge's court.

Judges are held to strict standards and are governed by the Code of Judicial Conduct. Canon

3B(10) of the Code ofludicial Conduct prohibits a judge from publicly commenting about a

pending or impending proceeding which may come before the judge's court in a manner which

9

suggests to a reasonable person the judge's probably decision on any particular case. In

Jefferson v. State, 803 S.W.2d 470, 472 (Tex. App. - Dallas, 1991, pet. Refd) the court held

that, "in this case [the judge] emphasized the fact that appellant knew the court had promised

him a certain sentence and that appellant received what was promised ... " "It is axiomatic that it

is a denial of due process for the court to arbitrarily refuse to consider the entire range of

punishment for an offense or to refuse to consider the evidence and impose a predetermined

punishment." Jefferson at 471.1. During the City Council meeting, Councilwoman Angela Hunt

stated that they based their decision on judges who responded to the City Manager's

recommendations in a team approach to improve the courts, basically agreeing to the

recommendations. The City Council Defendants then voted to appoint the applicants who agreed

to commit to results and to predispose of cases and would agree to follow the City Manager's

(executive branch) recommendations.

D. Violation of Due Process

24. The City Council Defendants had the legal obligation under their own rules of

procedure to vote on each individual nominee presented as a candidate for municipal judge. The

City Council Defendants violated their own procedural rules by voting on a "slate" of proposed

municipal judges when the appointment of municipal judges was not on the consent agenda but

instead one of the items for individual consideration. During this process, one city council

defendant asked to vote on the judicial candidates individually and was overruled by her

colleagues, once again evidencing the City Council Defendants' rush to violate their own

policies, procedures, rules, ordinances and laws.

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VI. DECLARATORY JUDGMENT

25. The allegations of paragraphs 1- 24 above are incorporated herein by reference as if set

forth fully below.

26. A real and substantial justiciable controversy exists between Plaintiffs and City Council

Defendants regarding the ordinance governing the appointment of judges, violations of the Texas

Transportation Code, the Texas Constitution because the City Council Defendants will

imminently publish the results of their illegal actions taken on August 22, 2012.

27. Pursuant to the provisions of the Texas Civil Practice and Remedies Code Section

37.001 et seq., and the Texas Constitution, Plaintiffs seeks a judgment of this Court declaring

that the City Council Defendants violated the Texas Transportation Code Section 720.002 (a)

(2) and (b)(2), as well as Dallas City Code Section 13-5.2(e) because the City Council

Defendants evaluated the Plaintiffs based on recommendations related to raising revenue and by

asking the Plaintiffs' to commit to the recommendations thus asking the Judges to violate the

Code of Judicial Conduct. The City Council Defendants also failed to follow its own law, the

Dallas City Code in that they did not follow the mandated procedure for appointment of

municipal judges.

28. Threat of Probable, Imminent and Irreparable Injury.

The Judges will suffer a probable, imminent and irreparable injury if, as they reasonably

anticipate, the Defendants publish the results ofthe vote taken by the City Council on August 22,

2012. Based upon information and belief, the publication of the results of the illegal vote will

occur on August 25, 2012.

29. No Adequate Remedy at Law

The Judges have no adequate remedy at law for the ongoing and potential injuries caused by the

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imminent publication of the results of the illegal vote taken by the Defendants. No amount of

money damages could compensate them. This protected interest is unique and irreparable. For

the potential harm and damage that would be inflicted on the Judges but for the intervention of

this Court, the Judges have no adequate remedy at law. Further, 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, pet.

Denied); San Miguel v. City of Wind crest, 40 S.W. 3d 104, 108 (Tex. App.- San Antonio 2000,

no pet.

30. Plaintiffs are ready and willing to post a reasonable bond in an amount deemed

appropriate by the Court. However, Plaintiffs contend that no bond is necessary in this case to

protect Defendants.

31.Cause of Action Against Defendants.

Plaintiffs seek 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:

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 pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual;

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

(emphasis added.)

32. The Judges are also entitled to a permanent injunction pursuant to Texas Civil Practice and

12

Remedies Code Section 65.011 because:

(a) the Judges are entitled to the relief above demanded and such relief requires the restraint

of Defendant from acts that will be prejudicial to the Judges;

(b) Defendants may act in violation of the Dallas City Code regarding the appointment of

Municipal Judges;

( c) the Judges are entitled to a writ of injunction under the principles of equity; and

(d) irreparable injury to the Judges is threatened, irrespective of any remedy at law.

33. The Judges also request that a permanent injunction be issued upon final trial.

34. 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 to publish the results of the vote taken by City Council regarding the reappointment of full time and associate municipal judges.

VIII. REQUEST FOR DISCLOSURE.

35. Pursuant to Rule 194.1 of the Texas Rules of Civil Procedure, Plaintiffs request that

Defendants disclose the information identified in Rule 194.2( a)-(i). Plaintiffs 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, Plaintiffs Timoteo F. Gonzalez, David C.

Indorf, Ruth C. Logan, and Cheryl D. Williams, respectfully request that, upon final trial in this

matter, the Court award the following:

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

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(ii) a permanent injunction as set forth above;

(iii) a declaring that the actions committee were

by not following the Dallas in selecting and

Municipal Judges to serve

(iv) such and further relief, at law or in the Judges may be justly

Dallas, Tel. Fax. 214-748-7965 SBN: 1

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VERIFICATION

ST ATE OF TEXAS

COUNTY OF DALLAS

On this day, David C. Indorf personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that he/she/they are the Plaintiffs in this action; that he has read the above motion; and that every statement contained in the motion is within his personal knowledge and is true and correct. ~

DavidC~ SWORN TO A~~~~~~~~alll~e gus ~,

STATE OF TEXAS

COUNTY OF DALLAS

On this day, Cheryl D. Williams personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that he/she/they are the Plaintiffs 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.

SWORN TO AND SUBSCRIBED b

15

STATE OF TEXAS

COUNTY OF DALLAS

On this day, Ruth C. Logan personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that he/she/they are the Plaintiffs 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.

SWORNTOAN~D~S~~~~~~~~v,

STATE OF TEXAS

COUNTY OF DALLAS

On this day, Timoteo F. Gonzalez personally appeared before me, the undersigned Notary Public, and after being duly sworn stated under oath that he/she/they are the Plaintiffs in this action; that he has read the above motion; and that every statement contained in the motion is within his personal knowledge and is true and correct.

SWORN TO AND SUBSCRIBED b

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EXHIBIT1

OF DATE: ____________________________________ ___

e Legislative (Ad Hoc) Committee for Judicial Appointments Committee would like your

thoughts on the following recommendations to improve our Municipal Court System. Please

email your responses by 4:00 p.m. Tuesday, August

201

5.

Gather more detailed information from d nts when granti payment

er penalties idelines 8 to

of fine amount when calculating ti rved credit. It after determination by

judge that the defendant is too poor pay, consider community service and

optio . or jail, if the ndant is not too poor to pay,

to pay and space is available ail. to all trial case setti require

ndant a pretrial renee with the prosecutor. ition and/or reduced fines might

offered in this meeting. AI! dants will be apprised of their

an attorney and their right to a I duri their Pre I

RESPONSE

1

it Motions for Continuance

Ilow off-docket motions for

ngs for defenda nts who not

pond within 21 days or who il to

r ratrial

. Require that a cash or surety bond be posted secure appearance in trial rail d ndants who do n res nd within 21 d or who il a r r a I

over the internet, ition fees, paramete

community service,

ave the Municipal Court Administration, rTs Office, and Jud ry present

joint report the Ad Hoc Council

mmittee annually regarding efforts to

chieve community Is that are

pacted by City ordinances. For mple: (1) u on dismissal . (2)

I Rules; and (3) a of

rred disposition me amount as the window fine plus

der having ou r web site re a d nt ca n the

rred disposition, if they

2

you in favor of a paperless system in

unicipal cou

•

3