Devvy Kidd v. Carlos Cascos, Texas Secretary of State ( 2015 )

ACCEPTED
03-14-00805-CV
6270225
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/29/2015 11:19:01 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00805-CV
In the Court of Appeals 3rd COURT FILED IN
OF APPEALS
AUSTIN, TEXAS
for the Third Judicial District7/29/2015 11:19:01 AM
Austin, Texas JEFFREY D. KYLE
Clerk
______________________________________
Devvy Kidd,
Appellant,
v.
Carlos Cascos, Texas Secretary of State,
Appellee.
_______________________________________
On Appeal from the 53rd Judicial District Court, Travis County
Trial Court Cause No. D-1-GN-14-003900
_________________________________________
APPELLEE’S BRIEF
_________________________________________
KEN PAXTON ADAM N. BITTER
Attorney General of Texas Assistant Attorney General
CHARLES E. ROY Texas Bar No. 24085070
First Assistant Attorney General
OFFICE OF THE
JAMES E. DAVIS ATTORNEY GENERAL
Deputy Attorney General for Civil P.O. Box 12548
Litigation Austin, Texas 78711-2548
ROBERT O’KEEFE Phone (512) 936-2422
Division Chief Fax (512) 477-2348
Financial Litigation, Tax, and Charitable adam.bitter@texasattorneygeneral.gov
Trusts Division ATTORNEYS FOR APPELLEE
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellee adopts Appellant’s Identity of Parties and Counsel, with the following
clarification regarding the name of the Appellee:
Appellee: CARLOS CASCOS, TEXAS
SECRETARY OF STATE (formerly
Nandita Berry)
Counsel for Appellee: ADAM N. BITTER
(trial and appellate) Assistant Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
State Bar No. 24085070
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ....................................................................i
TABLE OF CONTENTS .....................................................................................................ii
INDEX OF AUTHORITIES ..............................................................................................iii
STATEMENT OF THE CASE .......................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT .................................................... v
ISSUE PRESENTED .......................................................................................................... vi
BRIEF ...................................................................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 2
I. CONSTITUTIONAL BACKGROUND ................................................... 2
II. PROCEDURAL HISTORY ......................................................................... 4
SUMMARY OF THE ARGUMENT ................................................................................. 5
STANDARD OF REVIEW ................................................................................................. 5
ARGUMENT ......................................................................................................................... 6
I. THE SEVENTEENTH AMENDMENT IS SETTLED LAW. ............ 6
II. COURTS HAVE REPEATEDLY REJECTED CHALLENGES
TO THE VALIDITY OF THE SEVENTEENTH AMENDMENT. .. 9
III. KIDD’S PETITION WAS PROPERLY DISMISSED UNDER
RULE 91A...................................................................................................... 10
PRAYER ............................................................................................................................... 12
CERTIFICATE OF COMPLIANCE .............................................................................. 13
CERTIFICATE OF SERVICE ......................................................................................... 13
ii
INDEX OF AUTHORITIES
Cases
Adams v. Clinton,
90 F. Supp. 2d 35 (D.D.C.), aff’d,
531 U.S. 941 (2000) ............................................................................................................. 9
Anderson v. Cal. Republican Party,
No. C-91-2091 MHP, 1991 WL 472928 (N.D. Cal. Nov. 26, 1991),
aff’d sub nom. Anderson v. Davis, 977 F.2d 587 (9th Cir. 1992) ....................................... 10
Arizona v. Inter Tribal Council of Ariz., Inc.,
133 S. Ct. 2247 (2013)......................................................................................................... 8
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ....................................................................................................... 6, 11
City of Austin v. Liberty Mut. Ins.,
431 S.W.3d 817 (Tex. App.—Austin 2014, no pet.) ....................................................... 6
Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528 (1985) ............................................................................................................. 8
Go Daddy.com, LLC v. Toups,
429 S.W.3d 752 (Tex. App.—Beaumont 2014, pet. denied) ..................................... 5, 6
Gray v. Sanders,
372 U.S. 368 (1963) ............................................................................................................. 7
Judge v. Quinn,
612 F.3d 537 (7th Cir.), amended on denial of rehearing,
387 F. App’x 629 (7th Cir. 2010) ...................................................................................... 9
Leser v. Garnett,
258 U.S. 130 (1922) ............................................................................................................. 8
Nietzke v. Williams,
490 U.S. 319 (1989) ............................................................................................................. 6
Reynolds v. Sims,
377 U.S. 533 (1964) ............................................................................................................. 7
Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986) ............................................................................................................. 7
Trohimovich v. Comm’r,
77 T.C. 252 (1981)............................................................................................................. 10
Trohimovich v. Dep’t of Labor & Indus.,
869 P.2d 95 (Wash. Ct. App. 1994)................................................................................. 10
Tullier v. Giordano,
265 F.2d 1 (5th Cir. 1959) .................................................................................................. 9
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) ............................................................................................................. 7
United States v. Carrier,
944 F.2d 910 (9th Cir. 1991) .............................................................................................. 9
iii
United States v. Sluk,
No. M-18-304, 1979 WL 1474 (S.D.N.Y. Oct. 2, 1979) .......................................... 9, 10
United States v. Stahl,
792 F.2d 1438 (9th Cir. 1986) ............................................................................................ 8
United States v. Thomas,
788 F.2d 1250 (7th Cir. 1986) ............................................................................................ 8
Constitutions
U.S. CONST. amend. XVII, para. 1 ....................................................................................... 2
U.S. CONST. amend. XVII, para. 2 ....................................................................................... 2
U.S. CONST. art. I, § 3, cl. 1, amended by U.S. CONST. amend. XVII ............................. 2, 3
U.S. CONST. art. V .......................................................................................................... 2, 3, 7
U.S. CONST. art. VI, cl. 2 ................................................................................................... 2, 7
Rules
FED. R. CIV. P. 12(b)(6).......................................................................................................... 6
TEX. R. APP. P. 7.2(a) ............................................................................................................. 4
TEX. R. CIV. P. 91a.1 ........................................................................................................ 6, 11
TEX. R. CIV. P. 91a.6 .............................................................................................................. 6
Statutes
Act of April 20, 1818, ch. 80, § 2, Rev. Stat. § 205 (2d ed. 1878) (current version,
as amended, at 1 U.S.C. § 106b (2012)) ............................................................................ 3
Other Authorities
47 Cong. Rec. 1925 (1911) .................................................................................................... 3
48 Cong. Rec. 6367 (1912) .................................................................................................... 3
Certification of U.S. Secretary of State William Jennings Bryan, May 31, 1913,
38 Stat. 2049..................................................................................................................... 3, 4
Kenneth R. Thomas et al., The Constitution of the United States of America: Analysis and
Interpretation, S. Doc. No. 112-9 (2014) ............................................................................ 3, 4
Zachary D. Clopton & Steven E. Art, The Meaning of the Seventeenth Amendment and a
Century of State Defiance, 107 Nw. U. L. Rev. 1181 (2013)............................................... 3, 4
iv
STATEMENT OF THE CASE
Nature of the Case: Appellant Devvy Kidd seeks declaratory and
injunctive relief challenging the ratification of the
Seventeenth Amendment to the United States
Constitution.
Trial Court: 53rd District Court, Travis County
Hon. Gus J. Strauss, Jr., Judge Presiding
Course of Proceedings: Kidd filed a Request for Writ of Prohibition and
Injunction. CR 3-18.1 Appellee Texas Secretary of
State filed an Original Answer, Affirmative Defenses,
Motion to Dismiss Under Rule 91a, and in the
Alternative, Plea to the Jurisdiction and Special
Exceptions. CR 97-113. Kidd filed a response to the
Texas Secretary of State’s Motion to Dismiss. CR
118-136.
Trial Court Disposition: Following a hearing, the trial court entered an order
on December 4, 2014 dismissing Kidd’s petition
pursuant to Texas Rule of Civil Procedure 91a. CR
137.
STATEMENT REGARDING ORAL ARGUMENT
Appellee believes that this appeal can be resolved without oral argument.
However, Appellee will participate in oral argument should the Court so order.
1
Cites to the Clerk’s Record are cited as “CR” by page number stamped onto each page. Cites to this
brief’s appendix are cited as “App.”
v
ISSUE PRESENTED
This appeal presents one central issue: Whether the trial court erred in
dismissing, pursuant to Texas Rule of Civil Procedure 91a, Appellant’s request for
declaratory and injunctive relief challenging the ratification of the Seventeenth
Amendment to the United States Constitution.
vi
No. 03-14-00805-CV
In the Court of Appeals
for the Third Judicial District
Austin, Texas
______________________________________
Devvy Kidd,
Appellant,
v.
Carlos Cascos, Texas Secretary of State,
Appellee.
_______________________________________
On Appeal from the 53rd Judicial District Court, Travis County
Trial Court Cause No. D-1-GN-14-003900
_________________________________________
APPELLEE’S BRIEF
_________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant’s lawsuit is founded on the contention that the ratification of the
Seventeenth Amendment to the U.S. Constitution—which provides for the direct
election of U.S. Senators—was “false, fraudulent and constitutionally inadequate and
invalid.” CR 16. According to Appellant, any actions taken in connection with electing
U.S. Senators by popular vote are therefore “null, void, and illegal.” CR 17. Appellant
seeks to enjoin the Texas Secretary of State, as the State’s chief election officer, from
“performing any act related to elections of any Senator pursuant to the terms of this
‘non-amendment.’” CR 17.
1
Kidd fails to state any plausible legal claim and thus her petition was properly
dismissed under Rule 91a. Upon its ratification in 1913, the Seventeenth Amendment
became the “supreme Law of the Land.” U.S. CONST. arts. V, VI, cl. 2. Time and time
again, federal and state courts—including the U.S. Supreme Court—have applied and
interpreted the Seventeenth Amendment without any suggestion that its ratification was
improper. Instead, when presented with claims like those asserted by Kidd, courts have
done precisely what the trial court did here: reject them as lacking any legal basis.
Accordingly, the Court should affirm the trial court’s order.
STATEMENT OF FACTS
I. CONSTITUTIONAL BACKGROUND
The Seventeenth Amendment to the U.S. Constitution provides for the election
of U.S. Senators by popular vote. Specifically, the Amendment states:
The Senate of the United States shall be composed of two Senators from
each State, elected by the people thereof, for six years; and each Senator
shall have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State
legislatures.
U.S. CONST. amend. XVII, para. 1 (attached at App. 1).2 Prior to the Seventeenth
Amendment’s ratification, U.S. Senators were selected by state legislatures. U.S. CONST.
2
The Seventeenth Amendment also addresses elections of U.S. Senators when a vacancy occurs. See
U.S. CONST. amend. XVII, para. 2 (“When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided,
That the legislature of any State may empower the executive thereof to make temporary appointments
until the people fill the vacancies by election as the legislature may direct.”).
2
art. I, § 3, cl. 1, amended by U.S. CONST. amend. XVII; see also Zachary D. Clopton &
Steven E. Art, The Meaning of the Seventeenth Amendment and a Century of State Defiance, 107
Nw. U. L. Rev. 1181, 1185 (2013).
The Seventeenth Amendment was adopted by the U.S. Senate on June 12, 1911,
see 47 Cong. Rec. 1925 (1911), and by the U.S. House of Representatives on May 13,
1912, see 48 Cong. Rec. 6367 (1912). The Amendment was subsequently approved by
thirty-six of forty-eight states then existing at the time, satisfying the threshold for
adoption of constitutional amendments by state legislatures. See U.S. CONST. art. V.
The thirty-sixth state (Connecticut) adopted the Seventeenth Amendment on April 8,
1913. See Kenneth R. Thomas et al., The Constitution of the United States of America: Analysis
and Interpretation, S. Doc. No. 112-9, at 34 n.9 (2014).
On May 31, 1913, U.S. Secretary of State William Jennings Bryan certified to
Congress, pursuant to his statutory duty,3 that three-quarters of the states had ratified
the proposed amendment providing for the direct election of U.S. Senators.
Certification of U.S. Secretary of State William Jennings Bryan, May 31, 1913, 38 Stat.
2049, 2049-2050 (attached at App. 3). Secretary of State Bryan’s proclamation declared
that the Seventeenth Amendment was “valid to all intents and purposes as a part of the
3
See Act of April 20, 1818, ch. 80, § 2, Rev. Stat. § 205 (2d ed. 1878) (current version, as amended, at
1 U.S.C. § 106b (2012)) (upon notice provided to the Secretary of State that a constitutional
amendment has been adopted, it is the Secretary of State’s “duty . . . forthwith to cause the said
amendment to be published in the said newspapers authorized to promulgate the laws, with his
certificate, specifying the states by which the same may have been adopted, and that the same has
become valid, to all intents and purposes, as a part of the constitution of the United States”).
3
Constitution of the United States.” Id.; Thomas et al., supra, at 34 n.9. Since the
ratification of the Seventeenth Amendment, states have been required to hold elections
so that U.S. Senators can be directly elected by the people. Clopton & Art, supra, at
1185.
II. PROCEDURAL HISTORY
On September 22, 2014, Kidd filed a Request for Writ of Prohibition and
Injunction (the “Original Petition”). CR 3-18.4 Kidd requested declarations that the
Seventeenth Amendment “has not been constitutionally ratified and made a part of”
the Constitution and that any actions taken by Appellee relating to senatorial elections
“are null, void, and illegal.” CR 17. Kidd also sought an injunction barring Appellee
from “performing any act” in connection with senatorial elections. CR 17.
Appellee filed an Original Answer, Affirmative Defenses, Motion to Dismiss
Under Rule 91a, and in the Alternative, Plea to the Jurisdiction and Special Exceptions
on October 31, 2014. CR 97-113. In support of the Rule 91a motion to dismiss,
Appellee asserted that Kidd failed to state any plausible legal claim upon which relief
could be granted. CR 99-103. On November 14, 2014, Kidd filed a response to
Appellee’s motion to dismiss. CR 118-136.
The trial court held a hearing on December 4, 2014. CR 116-117, 137. After
4
Kidd’s Original Petition named Nandita Berry, in her official capacity as Texas Secretary of State, as
defendant. During the pendency of this appeal, Carlos Cascos succeeded Nandita Berry as Texas
Secretary of State and was substituted as Appellee. See TEX. R. APP. P. 7.2(a).
4
hearing arguments from Kidd and counsel for Appellee, the court granted Appellee’s
Rule 91a motion and dismissed all of Kidd’s claims with prejudice. CR 137. The court
did not reach Appellee’s plea to the jurisdiction. CR 137.
SUMMARY OF THE ARGUMENT
Once ratified in 1913, the Seventeenth Amendment was incorporated into the
Constitution and became the “supreme Law of the Land.” In the hundred years since,
the Seventeenth Amendment has been applied by federal and state courts, without any
finding—let alone a suggestion—that it was improperly ratified. All the while, when
presented with challenges to the Seventeenth Amendment’s ratification, courts have
repeatedly rejected them as baseless.
Reversing the lower court’s judgment would require this Court to cast aside over
one hundred years of settled law. This Court—like the court below—should decline
that invitation. Kidd cannot allege any set of facts that would entitle her to the relief
she seeks. Therefore, her petition was properly dismissed under Rule 91a and the trial
court’s judgment must be affirmed.
STANDARD OF REVIEW
Appellate courts review a trial court’s ruling on a motion to dismiss de novo. Go
Daddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet.
denied). When a party moves under Rule 91a to dismiss claims as lacking any basis in
law, the movant must establish that “the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle the claimant to the relief
5
sought.” TEX. R. CIV. P. 91a.1.5 In evaluating a Rule 91a motion, a plaintiff’s legal
conclusions in its pleading need not be taken as true. City of Austin v. Liberty Mut. Ins.,
431 S.W.3d 817, 822, 826 (Tex. App.—Austin 2014, no pet.). The court may not
consider evidence when ruling on a Rule 91a motion; instead, the ruling must be based
only on the pleading of the cause of action and any supporting exhibits. TEX. R. CIV.
P. 91a.6.
Rule 91a is analogous to Federal Rule of Civil Procedure 12(b)(6), which “allows
dismissal if a plaintiff fails ‘to state a claim upon which relief can be granted.’” Toups,
429 S.W.3d at 754 (quoting FED. R. CIV. P. 12(b)(6)). Because of these similarities,
federal case law interpreting Federal Rule 12(b)(6) provides instructive guidance to
courts considering a Rule 91a motion. Id. A claim must be dismissed under Federal
Rule 12(b)(6) if the plaintiff fails to plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Moreover,
Federal Rule 12(b)(6) “authorizes a court to dismiss a claim on the basis of a dispositive
issue of law . . . [to] streamline[ ] litigation by dispensing with needless discovery and
factfinding.” Nietzke v. Williams, 490 U.S. 319, 326-27 (1989) (citations omitted).
ARGUMENT
I. THE SEVENTEENTH AMENDMENT IS SETTLED LAW.
Appellant alleges that the Seventeenth Amendment was never properly ratified a
5
Rule 91a is attached in its entirety at App. 2.
6
century ago and thus constitutes “a law that does not exist.” CR 4; see also Appellant’s
Br. 29. These claims lack any basis in law and were appropriately rejected by the trial
court, just as all other courts have done when faced with similar challenges to the
Seventeenth Amendment’s validity.
As expressly provided in the U.S. Constitution, once it was ratified by three-
quarters of the states in 1913, the Seventeenth Amendment became a part of the
Constitution and the “supreme Law of the Land.” U.S. CONST. arts. V, VI, cl. 2. In
the century since its ratification, the U.S. Supreme Court has considered the
Amendment on numerous occasions. In these cases, the Supreme Court has found:
• The Seventeenth Amendment requires that the choice of U.S. Senators
“be made ‘by the people,’” Gray v. Sanders, 372 U.S. 368, 380 (1963).
• The “conception of political equality” in the Seventeenth Amendment and
other constitutional provisions “can mean only one thing—one person,
one vote,” id. at 381.
• The Seventeenth Amendment “expan[ds] . . . the right of suffrage.”
Reynolds v. Sims, 377 U.S. 533, 555 n.28 (1964).
• As a result of the Seventeenth Amendment’s adoption, “state power over
the election of Senators was eliminated.” U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 804 n.16 (1995).
• The Seventeenth Amendment applies to primaries in the same manner as
general elections. Tashjian v. Republican Party of Conn., 479 U.S. 208, 227
(1986).
The Supreme Court has never raised any doubt about the validity of the Seventeenth
Amendment’s passage or its continuing effect. To the contrary, the Court has
7
emphasized that the Amendment’s provision for the popular election of U.S. Senators
fits precisely into the structure of the federal electoral system. Most recently, in Arizona
v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013), the Court recognized:
The Constitution prescribes a straightforward rule for the composition of
the federal electorate. Article I, § 2, cl. 1, provides that electors in each
State for the House of Representatives “shall have the Qualifications
requisite for Electors of the most numerous Branch of the State
Legislature,” and the Seventeenth Amendment adopts the same criterion
for senatorial elections.
Id. at 2257-2258; see also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554
(1985) (“[C]hanges in the structure of the Federal Government have taken place since
1789, not the least of which has been the substitution of popular election of Senators
by the adoption of the Seventeenth Amendment in 1913 . . . .”).
At the same time, the Supreme Court has rejected after-the-fact challenges to the
procedures under which constitutional amendments were adopted. As to these
challenges, the Supreme Court has held that the U.S. Secretary of State’s certification
that state legislatures have ratified a constitutional amendment—like Secretary of State
Bryan’s 1913 proclamation confirming that three-quarters of the states had passed the
Seventeenth Amendment—“is conclusive upon the courts.” Leser v. Garnett, 258 U.S.
130, 137 (1922) (challenge to ratification of Nineteenth Amendment).6
6
See also United States v. Stahl, 792 F.2d 1438, 1439-41 (9th Cir. 1986) (finding that the Secretary of
State’s certification that three-quarters of the states had ratified the Sixteenth Amendment was
conclusive on the courts); United States v. Thomas, 788 F.2d 1250, 1253-54 (7th Cir. 1986) (recognizing
that challenges to constitutional amendments are reviewed similarly to other legislative documents—
that is, “[i]f a legislative document is authenticated in regular form by the appropriate officials, the
court treats that document as properly adopted”).
8
Unsurprisingly, lower federal and state courts likewise have applied and
interpreted the Seventeenth Amendment since its ratification. See, e.g., Tullier v. Giordano,
265 F.2d 1, 3 (5th Cir. 1959) (noting that the Seventeenth Amendment and other
constitutional provisions “have considerably extended the scope of federal power to
regulate the elective franchise”); Judge v. Quinn, 612 F.3d 537, 546-55 (7th Cir.)
(considering whether the Seventeenth Amendment required a governor to issue writ of
election to fill vacate U.S. Senate seat), amended on denial of rehearing, 387 F. App’x 629
(7th Cir. 2010).7 None of these cases questioned the validity of the Seventeenth
Amendment or suggested that the manner in which it was ratified impacts its continued
authority in any way.
II. COURTS HAVE REPEATEDLY REJECTED CHALLENGES TO THE VALIDITY
OF THE SEVENTEENTH AMENDMENT.
Appellee is aware of no case in which a court has found that the Seventeenth
Amendment was improperly ratified. Just the opposite is true. When presented with
arguments that the Seventeenth Amendment was not properly ratified, courts have
consistently dismissed these claims as baseless. See, e.g., United States v. Carrier, 944 F.2d
910 (9th Cir. 1991) (rejecting, as frivolous, defendant’s argument that the Seventeenth
Amendment was invalid because it was proposed by Congress and adopted by state
legislatures through quorum votes rather than total membership votes); United States v.
7
See also Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C.) (three-judge panel) (Seventeenth Amendment
claim in context of challenge to the District of Columbia’s exclusion from congressional
representation), aff’d, 531 U.S. 941 (2000).
9
Sluk, No. M-18-304, 1979 WL 1474, at *2-3 (S.D.N.Y. Oct. 2, 1979) (finding that the
Seventeenth Amendment was adopted in accordance with the U.S. Constitution and
dismissing claim that the Amendment should have been directly adopted by voters);
Trohimovich v. Dep’t of Labor & Indus., 869 P.2d 95, 97-98 (Wash. Ct. App. 1994) (rejecting
argument that the Seventeenth Amendment was not properly ratified and concluding
that the Amendment “is valid and does not render all congressional acts since its
passage invalid”).8
III. KIDD’S PETITION WAS PROPERLY DISMISSED UNDER RULE 91A.
In this lawsuit, Appellant alleges that the Seventeenth Amendment was not
properly ratified over a hundred years ago—the same underlying premise rejected by
every court to reach the issue. See supra Part II. Specifically, Appellant contends that
one state (California) did not adopt the Seventeenth Amendment and another state
(Wisconsin) enacted a version with different language than the ratified Amendment.
Appellant’s Br. 27-29; CR 9-13. In support, Appellant points to certain “historical
records”—namely, news accounts and legislative materials—that, according to
Appellant, reflect that the ratification of the Seventeenth Amendment was “false.”
Appellant’s Br. 8-9, 27; CR 9-13.
8
See also Trohimovich v. Comm’r, 77 T.C. 252, 258-259 (1981) (rejecting argument that the Seventeenth
Amendment was improperly ratified); cf. Anderson v. Cal. Republican Party, No. C-91-2091 MHP, 1991
WL 472928, at *3 (N.D. Cal. Nov. 26, 1991) (dismissing “untenable legal conclusion” that the
Seventeenth Amendment was unconstitutional; “[t]he amendment, as part of the Constitution, is
inherently constitutional”), aff’d sub nom. Anderson v. Davis, 977 F.2d 587 (9th Cir. 1992).
10
This Court need not scrutinize the merits of Kidd’s legal arguments—or the
“historical records” on which she bases her claims—to affirm the trial court’s judgment.
Rather, Kidd still would not be entitled to the relief she seeks even if her unfounded
allegations are taken as true for the purposes of Rule 91a. See TEX. R. CIV. P. 91a.1.
That is, even assuming Kidd were correct that the lack of news coverage and paucity of
certain hundred-year-old legislative records create some doubt about whether the
California Legislature passed the Seventeenth Amendment, or that selective archival
materials raise questions about the form in which the Wisconsin Legislature adopted
the Seventeenth Amendment, Kidd has failed to “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. Kidd overlooks that upon its ratification, the
Seventeenth Amendment became the “supreme Law of the Land” as a part of the U.S.
Constitution and has been settled law for the last century—even in the face of
challenges like the one presented here. Kidd offers no basis for the Court to disregard
this reality and allow her to press forward with specious claims. As a result, the Court
must affirm the trial court’s judgment.9
9
Because the trial court did not reach Appellee’s jurisdictional challenge, this appeal is limited to the
Rule 91a dismissal. That said, even if Kidd’s petition could somehow survive Appellee’s Rule 91a
motion (which it cannot), Kidd failed to establish that her claims were subject to the trial court’s
subject matter jurisdiction. Specifically, Kidd lacks standing to file this suit, her claims present only
nonjusticiable political questions, and Appellee’s sovereign immunity from suit has not been waived
under the circumstances. CR 103-111.
11
PRAYER
Appellant has not established—and cannot establish—any plausible legal basis
entitling her to the requested relief. Accordingly, Appellant’s claims were properly
dismissed pursuant to Rule 91a. The trial court’s order must be affirmed.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
ROBERT O’KEEFE
Division Chief
Financial Litigation, Tax, and Charitable Trusts
Division
/s/ Adam N. Bitter
ADAM N. BITTER
Texas Bar No. 24085070
Assistant Attorney General
Financial Litigation, Tax, and Charitable Trusts
Division
P.O. Box 12548
Austin, Texas 78711-2548
(512) 936-2422
(512) 477-2348 FAX
adam.bitter@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEE
12
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief
contains 2,879 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).
/s/ Adam N. Bitter
ADAM N. BITTER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent
via Certified Mail, Return Receipt Requested on July 29, 2015 to:
Devvy Kidd
P.O. Box 1102
Big Spring, Texas 79721
Appellant, Pro Se
/s/ Adam N. Bitter
ADAM N. BITTER
13
No. 03-14-00805-CV
In the Court of Appeals
for the Third Judicial District
Austin, Texas
______________________________________
Devvy Kidd,
Appellant,
v.
Carlos Cascos, Texas Secretary of State,
Appellee.
_______________________________________
On Appeal from the 53rd Judicial District Court, Travis County
Trial Court Cause No. D-1-GN-14-003900
_________________________________________
APPELLEE’S APPENDIX
_________________________________________
KEN PAXTON ADAM N. BITTER
Attorney General of Texas Assistant Attorney General
CHARLES E. ROY Texas Bar No. 24085070
First Assistant Attorney General
OFFICE OF THE
JAMES E. DAVIS ATTORNEY GENERAL
Deputy Attorney General for Civil P.O. Box 12548
Litigation Austin, Texas 78711-2548
ROBERT O’KEEFE Phone (512) 936-2422
Division Chief Fax (512) 477-2348
Financial Litigation, Tax, and Charitable adam.bitter@texasattorneygeneral.gov
Trusts Division ATTORNEYS FOR APPELLEE
APPELLEE’S APPENDIX
Tab 1 – U.S. CONST. amend. XVII
Tab 2 – TEX. R. CIV. P. 91a
Tab 3 – Certification of U.S. Secretary of State William Jennings Bryan, May 31, 1913,
38 Stat. 2049
1
TAB 1
U.S.C.A. Const. Amend. XVII Page 1
United States Code Annotated Currentness
Constitution of the United States
Annotated
Amendment XVII. Popular Election of Senators
Amendment XVII. Popular Election of Senators
The Senate of the United States shall be composed of two Senators from each State, elected by the people there-
of, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State
shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the vacancies by election as the legis-
lature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it be-
comes valid as part of the Constitution.
Current through P.L. 114-25 (excluding P.L. 114-18) approved 6-15-2015
Westlaw. (C) 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
TAB 2
TX Rules of Civil Procedure, Rule 91a Page 1
Vernon's Texas Rules Annotated Currentness
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 4. Pleading
C. Pleadings of Defendant
Rule 91a. Dismissal of Baseless Causes of Action
91a.1 Motion and Grounds. Except in a case brought under the Family Code or a case governed by Chapter 14
of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds
that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together
with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action
has no basis in fact if no reasonable person could believe the facts pleaded.
91a.2 Contents of Motion. A motion to dismiss must state that it is made pursuant to this rule, must identify
each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no
basis in law, no basis in fact, or both.
91a.3 Time for Motion and Ruling. A motion to dismiss must be:
(a) filed within 60 days after the first pleading containing the challenged cause of action is served on the
movant;
(b) filed at least 21 days before the motion is heard; and
(c) granted or denied within 45 days after the motion is filed.
91a.4 Time for Response. Any response to the motion must be filed no later than 7 days before the date of the
hearing.
91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion.
(a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the re-
spondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.
(b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
TX Rules of Civil Procedure, Rule 91a Page 2
movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to
the amended cause of action.
(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the
cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not
consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).
(d) An amended motion filed in accordance with (b) restarts the time periods in this rule.
91a.6 Hearing; No Evidence Considered. Each party is entitled to at least 14 days' notice of the hearing on the
motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except as re-
quired by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based
solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.
91a.7 Award of Costs and Attorney Fees Required. Except in an action by or against a governmental entity or
a public official acting in his or her official capacity or under color of law, the court must award the prevailing
party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged
cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the
award.
91a.8 Effect on Venue and Personal Jurisdiction. This rule is not an exception to the pleading requirements of
Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a ruling
on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss, a party submits to
the court's jurisdiction only in proceedings on the motion and is bound by the court's ruling, including an award
of attorney fees and costs against the party.
91a.9 Dismissal Procedure Cumulative. This rule is in addition to, and does not supersede or affect, other pro-
cedures that authorize dismissal.
CREDIT(S)
Adopted by order of Feb. 12, 2013, eff. March 1, 2013.
Current with amendments received through 6/1/2015
(C) 2015 Thomson Reuters
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
TAB 3
THE
STATUTES AT LARGE
OF THE
UNITED STATES OF AMERICA
/
FROM
MARCH, 1913, TO MARCH, 1915,
CONCURRENT RESOLUTIONS OF THE TWO HOUSES OF CONGRESS,
AND
RECENT TREATIES, CONVENTIONS, AND EXECUTIVE
PROCLAMATIONS
EDITED, PRINTED, AND PUBIJSHEI> BY AUTHORITY OF CONGRESS
UM>ER THE DIREGl'ION OF THE SECRETARY OF STATE
IN TWO PARTS
PART 1-Public Acts and Besolutlons
PART 2 - Private Acts and Resolutions, Concurrent Resolutions,
Treatiel!, and Proclamations
PART 1
WASWNG'rON
1911
WILLIAM JENNINGS BRYAN,
E RETARY OF STATE OF THE UNITED STATES OF
AMERICA.
To all to Wilom these Presents may come Greeting: May II, 1913.
Know Ye that, the Congress of the United States at the second
session, sixty-second Congress, in the year one thousand hine hundred
and twelve, passed a Resolution in the words and figures following:
to-wit-
"JOINT RESOLUTION
P roposing an amendment to the Constitution providing that Senators
shall be elected by the people of the several States.
Resolved by the Senate and House of Representatives of the ~~the!.::!
United States of America in Congress assembled (two-thirds of
each House concurr:ing therein) That in lieu of the first paragraph ~~b;: MG.
=. •
of section three of Article I of the Constitution of the United States, '
and in lieu of so much of paragraph two of the same section as
relates to the filling of vacancies the following be proposed .as an
amendment to the Constitution, whlch shall be valid to all intents and
purposes as part of the Constitution when ratified by the lcgislatur.es
of three-fourths of the States:
'The Senate of the United tatl.'S shall be composed of two Sena- b ~1or1~1>eo1ectec1
tors from each State, elected by the peo_ple thereof, for six yenrs; 1 •poop •
and each eno.tor shall have ono vote. The electors in co.ch Ste.to
shall havo tho qualification requ isite for l'llectors of tho m t numer-
ous brunch of the tate legislatures.
'When vo.cnncios hnppon in the rrprcsentation of nny tate in tho Filling or """"""i.s.
nate, tho e. ecufo·e authority of such tate shall issue writs of
election to fill such vacancies: ProYidcd, That tho lP!!islature of
any Stnto mny mpowcr tho oxccut.h·o thereof to make tomporo.ry
appointment until tho people fill the vacancies by lection as tho
legislature may di rect.
'This amendment shall not be so construed as to affect the elec- atrE,:.bJ~ t4rDl.I noi
tion or term of auy Senator c.!;iosen before it becomes ~alid as part
of tho Con ·titution.' "
And, further, that it appears from official documents on file in this ~i:s~:f.e'.f. Pn>
Department thn the ...tmendment to the Constitution of the Unit d ·
tates proposed as aforesaid has been ratified by the Legislatures
of the to.tes of :\[n. sachusetts, Arizona, Minnesota., New York,
Kirnsus, Oregon, North Carolina, California, Michigan, Idaho, West
Virginia, • · ebra kn, Iowa, :\fontana Texa , Wa hington, Wyoming,
Colorado Illinois, Xorth Dakota, 'N Yadn, Vermont ~aine, N w
Hamp hire, Oklahoma, Ohio, ~o uth Dakota, Indiana, ~fissouri, New
:Mexico. New Jersey, Tennes ee, Arkansas, Connecticut, Pennsylvania,
and Wiscon in.
2049
2050 AMEND~NT TO THE CONSTITUTION.
And, further that the States whose Legislatures have so ratified
the said propos;;J amendment1 constitute three-fourths of the whole
number of states in the United States.
Ho~~ 0~rc:!."It Now, therefore, be it known that IJ William Jennings Bryan,
cul.loo. Secretary of State of the United States, oy virtue and in pursuance
R.s.,.,.205,p.l3. of Section 205 of the Revised Statutes of the United States, do
hereby certify that the Amendment aforesaid has become valid to all
intent.a and purposes as a part of the Constitution of the United
States. .
IN TESTIMONY WHEREOF, I have hereunto set my hand and
caused the seal of the Department of State to be affixed.
Done at the city of Washington this thirty first day of May in the
year of our Lora one thousand nine hundred and
[DAL.] thirteen, and of the Independence of the United States
.of America the one hundred and thirty-seventh.
WILL.lil1 JENNINGS B:aYAN