                                                                                              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
