Devvy Kidd v. Carlos Cascos, Texas Secretary of State

June 29, 2015
No. 03-14-00805-CV
IN THE THIRD COURT OF APPEALS
at Austin, Texas
DEVVYKIDD,
Appellant,
v.
CARLOS CASCOS,
Texas Secretary of State,
Appellee.
On Appeal from the
53rd District Court of Travis County
BRIEF OF APPELLANT
DEVVYKIDD
DEVVYKIDD
Appellant Pro se
P.O. Box 1102
Big Spring, Texas 79721
432-264-7869
ORAL ARGUMENT NOT REQUESTED
RECEIVED
JUN 2 9 2015
THIRD COUHT OF AP?E~LS
JEFFREY D. f~YlF. /
IDENTITY OF PARTIES AND COUNSEL
Plaintiff-Appellant: Counsel:
DevvyKidd Devvy Kidd, pro se
P.O. Box 1102
Big Spring, Texas 79721
The State Defendant-Appellant: Defense Trial Counsel:
Carlos Cascos, Texas Secretary of State Adam N. Bitter
Attorney General's Office
P.O. Box 12548
Austin, Texas 78711-2548
Appellate Counsel:
Adam N. Bitter
TABLE OF CONTENTS
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Table of Contents. . ................................................. ii
F' Index of Authorities .............................................. 0 • • iii
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~ Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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Statement Regarding Oral Argument. ................................... 1
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Issue Presented. . ................................................... 1
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~ Statement of the Facts ................................................ 1
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fP' Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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~ Argument............................ 0 •••••••••••••••••••••••••••• 10
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Prayer............................................................ 30
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Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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~ Certificate of Compliance .......... 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 32
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~ Certificate of Service................................................ 32
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INDEX OF AUTHORITIES
Cases: Page:
Alabama v. Manley,
441 So. 2d 864 (Ala. 1983 )........................................... 14
Ashcroft v. Blunt,
696 S.W.2d 329 (Mo. bane 1985)...................................... 20
Ass 'n of Texas Prof Educators v. Kirby,
788 S.W.2d 827 (Tex. 1990)........................................ 9, 29
Bennett v. Jackson,
186 Ind. 533, 116 N.E. 921 (1917) ..................................... 15
Bd. ofRev. ofJefferson County v. Crow,
141 Ala. 126,37 So. 469 (Ala. 1904)................................... 21
Carnegie Instil. of Medical Lab. Technique, Inc. v. App. Authority for Schools for
Training Medical Lab. Technologists, 213 N.E.2d 225 (Mass. 1965).......... 22
Bott v. Wurts,
63 N.J.L. 289, 43 A. 744 (1899)....................................... 17
City of Chicago v. Reeves,
220 Ill. 274, 77 N .E. 23 7 ( 1906). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Collier v. Frierson,
24 Ala. 100 (1854).................................................. 14
Collins v. Walker,
329 F.2d 100 (5th Cir. 1964).......................................... 27
County Comm. of Washington County v. Baker,
141 Md. 623,119 A. 461 (1922) ....................................... 22
Crawford v. Gilchrist,
64 Fla. 41, 59 So. 963 (1912) ......................................... 15
iii
Cudihee v. Phelps,
76Wash.314, 136P.367(1913)...................................... 17
Durfee v. Harper,
22 Mon. 354, 56 P. 582 (1899) ........................................ 16
~ Ellingham v. Dye,
~ 178 Ind. 336, 99 N.E. 1 (1912) ........................................ 15
Field v. Clark,
143 U.S. 649, 12 S. Ct. 495 (1892) ..................................... 14
Fuqua v. Davidson County,
189 Tenn. 645, 227 S.W.2d 12 (1950) .................................. 22
Gabbert v. Chicago, R.I. and P. Ry. Co.,
171 Mo. 84,70 S.W. 891 (1902) ....................................... 16
Gardner v. Collector,
73 U.S. (6 Wall.) 499 (1868) .......................................... 13
Graham v. Jones,
198 La. 507, 3 So. 2d 761 (1941) ...................................... 16
Green v. State Board of Canvassers,
5 Idaho 130,47 P. 259 (1896) ......................................... 15
Gottstein v. Lister,
88 Wash. 462, 153 P. 595 (1915) ...................................... 17
Hammond v. Clark,
136 Ga. 313,71 S.E. 479 (1911) ....................................... 15
Hammontree v. Phelps,
605 F.2d 1371 (5th Cir. 1979)......................................... 23
Heiner v. Donnan,
285 U.S. 312, 52 S. Ct. 358 (1932) ..................................... 24
iv
Hillsb. County v. Temple Ter. Assets Co.,
Ill Fla. 368, 149 So. 473 (1933) ...................................... 22
In re Denny,
156 Ind. 104, 59 N.E. 359 (1901) ...................................... 15
~ In re Kornbluh,
~ 134 N.J.L. 529, 49 A.2d 255 (1946) ................................... 22
In re Jaegle,
83 N.J.L. 313, 85 A. 214 (1912) ....................................... 22
In re McConaughy,
106 Minn. 392, 119 N.W. 408 (1909) ................................... 12
Kadderly v. Portland,
44 Ore. 118, 74 P. 710 (1903) ......................................... 17
King Lumber Company v. Crow,
155 Ala. 504, 46 So. 646 (1908) ....................................... 21
Knight v. Shelton,
134 F. 423 (E.D. Ark. 1905).......................................... 15
Koehler v. Hill,
60 Iowa 543, 14 N.W. 738 (1883) ................................... 15, 18
Livermore v. Waite,
102 Cal. 113, 36 P. 424 (1894) ........................................ 15
Lone Star College System v. Immigration Reform Coalition of Texas (IRCOT),
418 S.W.3d 263 (Tex.App.-Houston [14th Dist.] 2013) ................. 11, 12
Lovett v. Ferguson,
10 S.D. 44,71 N.W. 765 (1897) ....................................... 17
Mayor and Aldermen of West End v. Simmons,
165 Ala. 359, 51 So. 638 (1910) ....................................... 21
v
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~ McBee v. Brady,
~
51 Idaho 761 , 100 P. 97 ( 1909). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
~
McCreary v. Speer,
~
156 Ky. 783, 162 S.W. 99 (1914) ...................................... 15
f$'
~ McDougal v. Davis,
~ 201 Ark. 1185, 143 S.W.2d 571 (1940) ................................. 21
fiJI!\
~ Medlin v. County of Henrico Police,
~
34 Va. Ct. App. 396, 542 S.E.2d 33 (2001).............................. 23
f!IA
Moog v. Randolph,
~
77 Ala. 597 (1884) .................................................. 20
~
~ Moore v. Neece,
~ 80 Neb. 600, 114 N.W. 767 (1908)..................................... 22
~
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Oakland Paving Co. v. Hilton,
69 Cal. 479, 11 P. 3 (1886) ........................................... 15
~
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Oregon Business and Tax Research, Inc. v. Farrell,
~ 176 Ore. 532, 159 P.2d 822 (1945) .................................... 22
("*'
~ People v. Curry,
~ 130 Cal. 82, 62 P. 516 (1900) ......................................... 15
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People v. Lueders,
~
283 Ill. 287, 119 N.E. 339 (1918) ...................................... 22
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~ People v. Stevenson,
~ 281 Ill. 17, 117 N .E. 74 7 ( 1917). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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~ Rice v. Palmer,
r' 78 Ark. 432, 96 s.w. 396 (1906) ...................................... 15
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Rich v. Board of State Canvassers,
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100 Mich. 453, 59 N.W. 181 (1894) .................................... 16
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(ffl\ Rode v. Phelps,
~
80 Mich. 598, 45 N.W. 493 ( 1890) ..................................... 22
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Rogers v. State,
~
72 Ark. 565, 82 S.W. 169 (1904) ...................................... 21
fFIA
~ State v. Babcock,
~ 17 Neb. 188, 22 N.W. 372 (1885) ...................................... 16
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~ State v. Brookhart,
fiA
113 Iowa 250, 84 N.W. 1064 (1901).................................... 15
~ State v. City of Sanford,
~
113 Fla. 750, 152 So. 193 ( 1934) ...................................... 22
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fM State v. Cunningham,
~ 81 Wis. 440, 51 N.W. 724 (1892) ...................................... 17
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State v. Davis,
20 Nev. 220, 19 P. 894 (1888) ........................................ 16
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State v. Deal,
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24 Fla. 293, 4 So. 899 (1888) ......................................... 21
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~ State v. Fridley,
~ 126 Ariz. 419, 616 P.2d 94 (Ariz.App. Div. 1 1980) ....................... 20
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State v. Foraker,
~
46 Ohio St. 677, 23 N.E. 491 (1890) .................................... 17
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~ State v. Laiche,
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105 La. 84, 29 So. 700 (190 1)......................................... 22
State v. Marcus,
~ 160Wis.354, 152N.W.419(1915) .................................... 17
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State v. McClelland,
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18 Neb. 236,25 N.W. 77 (1885) ....................................... 22
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State v. Powell,
77 Miss. 543, 27 So. 927 (1900) ....................................... 16
State v. Sessions,
87 Kan. 497, 124 P. 403 (1912) ....................................... 15
State v. Skaley,
~ 108 Fla. 506, 146 So. 544 (1933) ...................................... 22
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~ State v. State Board of Equalization,
~
107 Okl. 118, 230 P. 743 (1924)....................................... 17
(li'?'
State v. Swan,
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7 Wyo. 166, 51 P. 209 (1897) ......................................... 22
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~ State v. Swift,
~ 69 Ind. 505 ( 1880).................................................. 15
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State v. Tooker,
15 Mon. 8, 37 P. 840 (1894) .......................................... 16
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State v. Tufty,
~ 19 Nev. 391, 12 P. 835 (1887) ........................................ 16
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~ State v. Wendler,
~ 94 Wis. 369, 68 N.W. 759 (1896) ...................................... 22
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State v. Wis. State Bd. ofMedical Examiners,
~
172Wis.317, 177N.W.910(1920) .................................... 22
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Tot v. United States,
~ 319 U.S. 463,63 S.Ct. 1241 (1943) .................................... 27
(!'
~ Town of South Ottawa v. Perkins,
~ 94 u.s. 260 (1877) ...0 •• 0 • 0 •••• 0 • 0 • 0 0 0 0 0 • 0 •••• 0 0 0 ••• 0 0 • 0 0 •• 0 • 0 0 •••• 13
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United States v. Belgrave,
484 F.2d 915 (3rd Cir. 1973).......................................... 27
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United States v. Bowen,
414F.2d 1268 (3rdCir. 1969)......................................... 25
United States v. Lake,
482 F.2d 146 (9th Cir. 1973).......................................... 27
United States v. Perry,
474 F.2d 983 (1Oth Cir. 1973)......................................... 26
United States v. Simmons,
476 F.2d 33 (9th Cir. 1973)........................................... 26
Volusia County v. State,
98 Fla. 1166, 125 So. 375 (1929) ...................................... 21
Watts v. Town of Homer,
207 So. 2d 844 (La.App. 2 Cir. 1968)................................... 20
Weis v. Ashley,
59 Neb. 494, 81 N.W. 318 (1899) ...................................... 22
Wooley v. Schaffer,
447 S.W.3d 71 (Tex. App. -Houston 2014) .............................. 9
Yancy v. Waddell,
139 Ala. 524, 36 So. 733 (1904)....................................... 21
Constitutional Provisions and Statutes:
U.S. Constitution, Art. I, §3 ........................................... 2
U.S. Constitution, Art. V .............................................. 2
U.S. Constitution, Seventeenth Amendment. ........................... 8, 23
Revised Statutes §205 ....................................... 3, 23, 24, 28
IX
STATEMENT OF THE CASE
On September 22, 2014, I filed in the trial court a complaint seeking a Writ of
Prohibition and Injunction (C.R. 3-18). That lawsuit was premised on the contention
that the Seventeenth Amendment to the U.S. Constitution, which provides for the
(!?!$'\ popular election of Senators, had failed to be lawfully ratified, and by means of my
complaint, I sought an injunction against the Secretary of State's efforts to sponsor
and conduct elections for Senators. On October 31, 2014, the Defendant/Appellee
Secretary of State filed a motion to dismiss my complaint (C.R. 97-113), and on
December 4, 2014, the trial court entered an order dismissing my complaint (C.R.
137). Notice of appeal was timely filed on December 19,2014 (C.R. 140).
STATEMENT REGARDING ORAL ARGUMENT
I believe that the issue presented here is more than capable of decision without
oral argument and therefor I do not request such arguments.
ISSUE PRESENTED
ISSUE: Did the trial court err in dismissing my complaint seeking a Writ of
Prohibition and Injunction?
STATEMENT OF THE FACTS
The original United States Constitution provided that United States Senators
shall be appointed by the various state legislatures: "The Senate of the United States
shall be composed of two Senators from each state, chosen by the legislature thereof,
for six years; and each Senator shall have one vote." See U.S. Constitution, Art. I, §3,
cl. 1. The Seventeenth Amendment provided for the popular election of senators
rather than appointment by state legislatures.
In June, 1911, the U.S. Senate proposed this amendment, and the House
concurred in May, 1912. That proposed amendment read as follows:
"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.
"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.
"This amendment shall not be so construed as to affect the election or term of
any Senator chosen before it becomes valid as part of the Constitution ." 1
Of the two separate methods for amendment as set forth in Art. V of the U.S.
Constitution, Congress chose to have the state legislatures ratify this proposed
amendment:
"The Congress, whenever two thirds of both houses shall deem it necessary,
shall propose amendments to this Constitution, or, on the application of the
legislatures of two thirds of the several states, shall call a convention for
proposing amendments, which, in either case, shall be valid to all intents and
purposes, as part of this Constitution, when ratified by the legislatures of three
fourths of the several states, or by conventions in three fourths thereof, as the
1
For promulgation of this amendment, see 37 Stat. 646.
2
one or the other mode of ratification may be proposed by the Congress".
There were 48 States in this American Union in I913, and thus it took 36 States to
ratify this amendment to the U.S. Constitution.
At that time, if a state legislature ratified an amendment, it notified the U.S.
Secretary of State of its ratification. If "three fourths" of the state legislatures
concurred with the amendment as Congress proposed, the Secretary of State would
issue a proclamation of ratification pursuant to Revised Statutes §205, which
provided as follows:
"Whenever official notice is received at the Department of State that any
amendment proposed to the Constitution of the United States has been adopted,
according to the provisions of the Constitution, the Secretary of State shall
forthwith cause the amendment to be published in the 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."2
On May 3I, I913, SecretaryofState William Jennings Bryan proclaimed that
36 States had ratified the Seventeen Amendment, and it was thus a part of the U.S.
Constitution. See 38 Stat. 2049. Secretary Bryan listed the States of California and
Wisconsin as two States that had ratified this amendment. Ever since that
proclamation, U.S. Senators have been chosen via the election process it provides.
But the U.S. Constitution allows an amendment to take effect only "when
2
The current law in this respect is codified at I U.S.C. §I 06b.
3
ratified by the legislatures of three fourths of the several states", and researchers have
investigated this process and determined that several States did not legally ratify the
amendment as required by the U.S. Constitution. As alleged in my complaint, the
Wisconsin legislature amended the proposed amendment in material respects, and
California never voted on the proposed amendment, yet these States were claimed by
Secretary Bryan as having ratified it.
As proof of what the Wisconsin legislature did regarding this proposal, I
attached Exhibit 4 (C.R. 65-66) to my complaint and it plainly shows that the
legislature ofWisconsin amended the proposed amendment, a power which it lacked.
In a letter dated May 20, 1912, the Executive Chamber ofthe Governor advised
the Secretary of State about the receipt of the Seventeenth Amendment Resolution
from Congress. However, in a second letter from the Acting U.S. Secretary of State
to the Governor of Wisconsin dated a full year later, it was noted that:
"In paragraph 4 of the Joint Resolution passed by the Wisconsin Legislature,
the following clause, which does not appear in the Joint Resolution passed by
Congress, is inserted after the word 'vacancies' and before the words 'the
following'".
However, the problem was far worse. Documents from the National Archives
show that the Wisconsin State Assembly and Senate adopted the following text for
the amendment, along with incorrect punctuation:
"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 make
4
temporary appointments until the people fill the vacancies by election as the
legislature may direct.
"This amendment shall not be so construed as to affect the election or term of
any senator chosen before it becomes valid as part of the constitution."
Not only did Wisconsin change the first paragraph, its legislature decided to
completely eliminate the second one. A state cannot add text to a constitutional
amendment nor can it simply decide to take out words, sentences or complete
paragraphs in a proposed constitutional amendment. Absolute conformity must be
adhered to or else possibly dozens of variations of an amendment to the U.S.
Constitution would result, causing endless legal problems.
The letter mentioned above closed with a request by the Acting U.S. Secretary
of State that the governor notify him as to the intention of the legislature regarding
ratification of the proposed amendment. After due diligence and research, no
documents can be found where Wisconsin ever corrected its invalid ratification.
While Secretary Bryan listed California as one of the States which ratified that
amendment, in fact, it did not. The California State Legislature never voted on it,
either the Assembly or Senate.
Exhibit 5 (C.R. 67 -86) to my complaint contains a number of certified
documents from the Secretary of State for the State of California, which proves no
vote was ever taken for that constitutional amendment. And Exhibit 6 (C.R. 87) to my
complaint was a compact disc of the entire California State Assembly Journal for the
5
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~ year 1913. California has put their Assembly and Senate history dating back to the
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1800s on the Internet. The certified documents in Exhibit 5 conform exactly to the
fiJ'
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entries found in Exhibit 6.
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~ No vote was ever taken by the California Assembly or Senate on that
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~ amendment, either on January 28, 1913, or any other day of that entire year.
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As seen from examination of the journal records in Exhibit 5, the Assembly
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voted on many bills, and each and every vote was recorded by the name of the elected
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~ Assemblyman, with the "yeas" and "nays" recorded. Had a vote on the proposed
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~ constitutional amendment really taken place, that vote would be recorded. It was not
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because no vote was taken by that legislature.
f!'
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Additionally, newspapers of that era failed to memorialize any vote in favor of
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~ this amendment. In 1913, there were two prominent newspapers publishing in the
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~ State of California. The San Francisco Call is available on the Internet through the
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Library of Congress, and every issue it published until shuttered on December 8, 1913
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is available.
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~ The date that California's legislature is claimed to have ratified the Seventeenth
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r' Amendment is January 28, 1913. In the San Francisco Call's archives for January
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~ 1913 through February 1913, there is no mention of the California State Legislature
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voting on any constitutional amendment. On January 30, 1913, the Call published a
litany of legislative actions taken through that date, but, there is not a single line
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~ about something as important as this constitutional amendment.
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The New York Times began publishing in 1851, and all of its issues are
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fP' available on microfilm. Searching from January 29, 1913 through February 1913,
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~ there isn't any coverage of the California State Legislature ratifying the Seventeenth
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~ Amendment. On January 30, 1913, the New York Times printed three separate items
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dealing with state legislatures:
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~ ( 1) Delaware Chooses Saulsbury, dealing with two Democratic members of the
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\ General Assembly and a vote deadlock;
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~ (2) For Income Tax Amendment out of Charleston, W.Va.; that legislature
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ratified the so called income tax amendment known as the Sixteenth
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(P'
Amendment;
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~ (3) Denver, CO, January 29: The Colorado House of Representatives adopted
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~ the Seventeenth Amendment allowing for direct election of U.S. Senators.
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Since the Times was covering legislative issues in the state capitols, why would
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it not publish a vote by California's State Legislature to amend the U.S. Constitution?
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~ The U.S. Constitution requires that an amendment must receive approval by
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(P' "three-fourths" of the States. There being 48 States in this American Union in 1913,
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~ 36 States were required to ratify this proposed Seventeenth Amendment. However,
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neither Wisconsin nor California legally ratified it, and the truth of the matter is that
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this proposed amendment fell two States short of ratification. By a false proclamation
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of the Secretary of State, William Jennings Bryan, the federal government was
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radically changed.
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~ SUMMARY OF ARGUMENT
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r' To persuade the American public to assent to the adoption of ObamaCare,
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President Obama and other proponents of this legislation openly and frequently
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claimed that medical insurance premiums would decrease after it became law.
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~ Reality now shows those representations by the most powerful politicians in this
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~ country to be false. It is projected that ObamaCare will cause insurance premiums to
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~ increase 41% soon. 3
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But false statements by government officials are nothing new. The U.S.
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Constitution originally provided that the state legislatures would appoint Senators,
but that original intent changed as a result of the Seventeenth Amendment. 4 It is
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f!" alleged that the Seventeenth Amendment was ratified by 36 States, which is a bare
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constitutional threshold. This number of ratifying States includes Wisconsin and
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California. But, official public records from Wisconsin show that Wisconsin never
~ adopted what Congress proposed regarding this amendment, and thus the claim that
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r' 3
See: (accessed June 17, 2015):
~ http://www. forbes. com/sites/theapothecary/20 13/11/04/49-state-analysis-obamacare-to-increase-i
~ ndividual-market-premiums-by-avg-of-41-subsidies-flow-to-elderly/
~
4
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"The Senate will be elected absolutely and exclusively by the State
legislatures." James Madison in Federalist Papers #45.
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~ Wisconsin "ratified" this proposed amendment is false. Further, official public
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records from California clearly disclose that neither legislative house in California
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~ ever ratified this amendment. The claim that California ratified this amendment is
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~ also false.
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~ I filed my "Seventeenth Amendment ratification" lawsuit against the Texas
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Secretary of State to enjoin that official from "providing all 254 election
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~ administrators in the State of Texas with a list of candidates for U.S. Senate to be
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~ placed on the ballot in each county" because this amendment had not been ratified.
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r' My complaint not only made clear factual assertions that neither Wisconsin nor
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California had ratified this amendment, but that complaint had attached to it a wealth
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r' of public records from these States to prove these allegations. The Texas Secretary
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~ of State, Texas Attorney General, or somebody retained for that purpose may visit the
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~ Archives in these States, but that party will discover exactly what I have discovered:
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the same documents attached to my complaint.
F'
American courts have developed two separate and distinct rules for litigation
fPA
~ that involves the question of whether a law or constitutional provision has been duly
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~ enacted. One rule, the journal entry rule, permits a court to examine legislative
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~ journals to determine whether any law was legally enacted by a legislature. The other
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rule, the enrolled bill rule, prohibits use of legislative journals to make this
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determination, the enrolled bill being presumed conclusive. Texas courts follow a
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modified version of the enrolled bill rule; see Association of Texas Professional
Educators v. Kirby, 788 S.W.2d 827, 830 (Tex. 1990). Texas law thus allows
examination of the evidence I have acquired regarding the non-ratification of the
Seventeenth Amendment, and thus my lawsuit was perfectly valid,.it stated a claim
for relief, and it was error to dismiss it.
ARGUMENT
I. Standard of Review.
This appeal involves an order of the trial court dismissing my complaint
pursuant to a motion filed by the Defendant Secretary of State. When considering in
an appeal the validity of a motion to dismiss, an appellate court "construe[s] the
pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as
true the factual allegations in the pleadings to determine if the pleader has alleged
facts that affirmatively demonstrate the trial court's jurisdiction over a claim." See
Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App. -Houston 2014).
Here, attached to my complaint were a large number of public records and
documents proving the various factual assertions I made in my complaint. These
factual assertions must be taken as true when considering the validity of my
complaint and whether the trial court erred in dismissing it. And as shown below, the
case authorities in not only other States but also in Texas authorize lawsuits
challenging the ratification of amendments to constitutions.
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II. My Standing For This Lawsuit.
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My complaint plainly alleged my standing to bring it. I live in Big Spring,
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~ Texas, where my husband and I own a home; we pay real property taxes every year.
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~ I pay all sorts of taxes imposed by the State of Texas, including sales taxes, gasoline
~
~ taxes, etc. But furthermore, I am complaining in this case that the Appellee Secretary
~
of State is engaged in illegal and unlawful acts and I am seeking a declaratory
~
~
judgment respecting those acts. Clearly, I have constitutional standing to pursue my
fP'
r' claims.
~
In Lone Star College System v. Immigration Reform Coalition of Texas
"
~
(IRCOT),418 S.W.3d263 {Tex.App.-Houston [14th Dist.] 2013), that court described
~
~
the elements for stating a claim like I have made here: "to establish taxpayer standing
~
fA to enjoin the illegal expenditure of public funds, a plaintiff must show: (1) the
~
~ plaintiff is a taxpayer, and (2) public funds are expended on the allegedly illegal
~
activity." Id., at 274. Clearly, I am a "taxpayer" and also just as clearly, there are
~
~
substantial funds being spent to conduct elections for U.S. Senators. As the court in
~
~ Lone Star College System stated, "allegations of payment of these taxes are sufficient
~
~ to support state taxpayer standing." Id., at 277.
~
~
III. Waiver of Sovereign Immunity.
r" My complaint sought a declaratory judgment and injunction against a public
~
~
official, and sovereign immunity has been waived for cases like this one. As the court
('P'
~ 11
~
(A
r'
~
~
~
~
~
~
recounted in Lone Star College System, supra, "the Texas Supreme Court has
~
declared that when claims challenge the validity of ordinances or statutes, relevant
~
~ governmental entities must be made parties; thus, governmental immunity is waived
~
~ for those entities. * * * Statutory challenges include claims that a statute is invalid for
~
~ constitutional or nonconstitutional reasons and claims merely seeking interpretation
~
or clarification of a statute." Id., at 271. Thus, a "suit asserting that a government
~
~ officer acted without legal authority or seeking to compel a governmental official to
~
~ comply with statutory or constitutional provisions is an ultra vires suit and is not
~
~ subject to pleas of governmental immunity." Id., at 272. Here, a "sovereign
~
(P!' immunity" defense is thus baseless and without foundation.
~
IV. The Merits of My Complaint.
~
~ A. The Majority Rule: Issues Regarding the Adoption of Constitutional
~
r' Amendments Present Valid Judicial Questions.
~
~
In reference to the contention that the issue of the ratification of any
~
amendment to a constitution presents only a political question, analysis of the
~
~
determination of this issue by various state courts is very probative. The great weight
(P"
~ of state authority is that issues concerning the ratification of amendments to state
"
~ constitutions are properly judicial and not political issues. This proposition of law
"
~
~
was precisely summarized by In re McConaughy, 106 Minn. 392, 119 N.W. 408
(1909), which held, after lengthy review of the authorities on this point, that an issue
~
F' 12
(F'
~
r
~
(fP'
r'
~
~
~
regarding the ratification or adoption of a constitutional amendment was clearly to be
~
judicially resolved.
~
~ Indeed, the U. S. Supreme Court has held that questions regarding the existence
~
~ or non-existence of state laws presents a judicial question. In Town ofSouth Ottawa
~
~ v. Perkins, 94 U.S. 260 (1877), the U. S. Supreme Court succinctly stated:
~
"There can be no estoppel in the way of ascertaining the existence of a law.
~
That which purports to be a law of a State is a law or it is not a law, according
~ as the truth of the fact may be, and not according to the shifting circumstances
r' of parties ... And whether it be a law or not a law is a judicial question, to be
~ settled and determined by the courts and judges", ld., at 267.
~
~ " ... but, on general principles, the question as to the existence of a law is a
~
judicial one, and must be so regarded by the Courts of the United States," Id.,
at 268.
r'
~
When an issue regarding the existence of a law is raised, the U.S. Supreme
~
~ Court has expressly sanctioned courts to determine the validity of such law by review
~
~ of any public documents available which render aid to the judicial mind. This was
~
clearly stated in Gardner v. Collector, 73 U.S. (6 Wall.) 499, 511 (1868), where the
~
~
U.S. Supreme Court stated:
~
~
"We are of opinion, therefore, on principle as well as authority, that whenever
~ a question arises in a court of law of the existence of a statute, or of the time
~ when a statute took effect, or of the precise terms of a statute, the judges who
~ are called upon to decide it have a right to resort to any source of information
~ which in its nature is capable of conveying to the judicial mind a clear and
satisfactory answer to such questions; always seeking first for that which in its
r'
nature is most appropriate, unless the positive law has enacted a different rule."
~
~
An inexhaustive review of the multitude of state cases holding that an issue
~
(P' 13
~
~
r'
~
~
f!A
~
~ regarding the adoption of a constitutional amendment presents a judicial question is
~
particularly appropriate under these circumstances. The substance of these cases is
('JA
~
that state courts will hold an amendment invalid if it has not been properly and
ti'A
fP' lawfully adopted, this invalidity being determined by examination of many public
~
fA records, most notably legislative journals. It must also be noted that while state courts
~
do inquire into the adoption of amendments, they sometimes have a different rule in
~
~ regards to legislation, with some courts following the ')ournal entry rule," and others
~
~ following the "enrolled bill rule." See Field v. Clark, 143 U.S. 649, 12 S. Ct. 495
~
~ (1892).
fA
Probably the first state court to be confronted with the issue concerning
r"
(F'
adoption of constitutional amendments was the Alabama Supreme Court. In Collier
(P'
,..
~ v. Frierson, 24 Ala. 100, 109 ( 1854), that court invalidated an amendment to the state
~ constitution for the reason that it had not been properly adopted, the court holding:
~
"It has been said, that certain acts are to be done- certain requisitions are to
~
~
be observed, before a change can be effected. But to what purpose are these
acts required, or these requisitions enjoined, if the Legislature or any other
~
department of the government, can dispense with them. To do so, would be to
~ violate the instrument which they are sworn to support; and every principle of
~ public law and sound constitutional policy requires the courts to pronounce
~ against every amendment, which is shown not to have been made in
~ accordance with the rules prescribed by the fundamental law."
fP'
fP' See also Alabama v. Manley, 441 So. 2d 864 (Ala. 1983). The rule enunciated in
~
Collier has been frequently followed in many cases in other jurisdictions. See Rice
~
~
~ 14
~
~
~
~
(lA
f'P'
~ v. Palmer, 78 Ark. 432,96 S.W. 396 (1906);Knight v. Shelton, 134 F. 423 (E.D. Ark.
I905); Oakland Paving Co. v. Hilton, 69 Cal. 479, II P. 3 (I886); Livermore v.
Waite, 102 Cal. 113, 36 P. 424 (1894); People v. Curry, 130 Cal. 82, 62 P. 516
~ (1900); Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 967 (1912) ("The act of the
~ Secretary of State in publishing at public expense and in certifying to the county
commissioners proposed amendments of the Constitution is in its nature ministerial,
involving the exercise of no discretion, and, if the act is illegal, it may be enjoined in
appropriate proceedings by proper parties, there being no other adequate remedy
afforded by law. When the alleged illegal act sought to be enjoined has relation to
legislative action, such action may be considered in determining the legality or
illegality of the act enjoined. This is not an interference by the courts with the
legislativedepartmentofthegovemment.");Hammondv. Clark, 136Ga.3I3, 71 S.E.
479 (1911); Green v. State Board of Canvassers, 5 Idaho 130, 47 P. 259 (1896);
McBee v. Brady, 51 Idaho 761, 100 P. 97 (1909); City of Chicago v. Reeves, 220 Ill.
27 4, 77 N .E. 23 7 ( 1906); People v. Stevenson, 281 Ill. 17, 11 7 N .E. 74 7 ( 1917); State
v. Swift, 69 Ind. 505 (1880); In re Denny, 156 Ind. 104, 59 N.E. 359 (1901);
Ellingham v. Dye, 178 Ind. 336,99 N.E. 1 (1912); Bennett v. Jackson, 186 Ind. 533,
116 N.E. 921 (1917); Koehlerv. Hill, 60 Iowa 543, 14 N.W. 738,741-42, reh. den.,
15 N.W. 609 (1883); State v. Brookhart, 113 Iowa 250, 84 N.W. 1064 (1901); State
v. Sessions, 87 Kan. 497, 124 P. 403 (1912); McCreary v. Speer, 156 Ky. 783, 162
15
~
fl'i'
~
(/P!' S.W. 99 (1914); Graham v. Jones, 198 La. 507, 3 So. 2d 761, 793-94 (1941)("It is
~
(!!"
said that chaos and confusion in the governmental affairs of the State will result from
~ the Court's action in declaring the proposed constitutional amendment void. This
~
~ statement is grossly and manifestly inaccurate. If confusion and chaos should ensue,
f!"
~ it will not be due to the action of the Court but will be the result of the failure of the
(!!A
drafters of the joint resolution to observe, follow and obey the plain essential
~
~
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
~
~ its sworn duty to enforce the Constitution, chaos and confusion will result, is an
~
~ inherently weak argument in favor of the alleged constitutionality of the proposed
~
amendment. It is obvious that, if the Court were to countenance the violations of the
~
(!'
sacramental provisions of the Constitution, those who would thereafter desire to
~
fP" violate it and disregard its clear mandatory provisions would resort to the scheme of
~
~ involving and confusing the affairs of the State and then simply tell the Court that it
~
~
was powerless to exercise one of its primary functions by rendering the proper decree·
~
to make the Constitution effective."); Loring v. Young, 239 Mass. 349, 132 N.E. 65
~
~ (1921 ); Rich v. Board ofState Canvassers, 100 Mich. 453, 59 N .W. 181 (1894); State
~
~ v. Powell, 77 Miss. 543, 27 So. 927 (1900); Gabbert v. Chicago, R. I. and P. Ry. Co.,
~
~ 171 Mo. 84, 70 S.W. 891 (1902); State v. Tooker, 15 Mon. 8, 37 P. 840 (1894);
~
fP'
Durfee v. Harper, 22 Mon. 354, 56 P. 582 (1899); State v. Babcock, 17 Neb. 188, 22
f?P'
N.W. 372 (1885); State v. Tufty, 19 Nev. 391, 12 P. 835 (1887); State v. Davis, 20
~
~ 16
~
~
~
(1"
~
~ Nev. 220, 19 P. 894 (1888); Bott v. Wurts, 63 N.J.L. 289,43 A. 744 (1899); State v.
Foraker, 46 Ohio St. 677,23 N.E. 491 (1890); State v. State Board ofEqualization,
107 Okl. 118, 230 P. 743 (1924); Kadderly v. Portland, 44 Ore. 118, 74 P. 710
~
~ (1903); Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765 (1897); Cudihee v. Phelps, 76
~
f" Wash. 314, 136 P. 367 (1913); Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915);
f"
~
State v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892); and State v. Marcus, 160
~
Wis. 354, 152 N.W. 419 (1915).
~
~ The above survey of state cases regarding this issue, while not being exhaustive
~
~ and inclusive of cases from every state, clearly shows that the great weight of state
~
authority holds that questions concerning the adoption of an amendment to a state
~
~
constitution are considered as judicial and not political issues.
~
~ B. The Necessity of Concurrence for Legislative Acts and Constitutional
(f'A
~ Amendments.
~
~
It is a common feature of many state constitutions to set forth the method
~
through which an amendment to the constitution can be made. Such methods typically
~
~
require one house of the legislature to propose an amendment, and this proposition
~
~ must be accepted by the other legislative house. Some constitutions also require a
~
~ subsequent legislative session to concur in a proposed amendment before it can be
~
submitted to the voters at a general election. Other typical features related to
r'
~
propositions to amend state constitutions include publication of the proposed
~
f' 17
~
~
~
~
~
~
~
~ amendment for a period of time before the election, and also a majority vote in favor
f!'
of the amendment by the total number of voters voting in the election. The challenges
~
~ to the adoption of amendments to state constitutions have arisen in situations where
~
~ it is alleged that the procedure or method required by the constitution has been
~
~ violated. As seen from the above review, state courts have invalidated amendments
~
when such have not been adopted in the method required by the constitution.
~
~ To adopt a constitutional amendment, the state courts require not only precise
~
fP' conformity with the procedural method outlined in a constitution, but also precise
~
~ concurrence. This means that both houses of a legislature must agree upon the same
~
amendment, and this same amendment must be adopted by the people. No state court
~
~
would sanction an amendment in a situation where both houses did not agree upon
~
~ the same amendment, or where the people voted upon an amendment different from
~
~ that proposed by the legislature. A failure in this respect vitiates the entire amendment
~
~
because there is not complete but incomplete agreement on the amendment.
~
This was aptly demonstrated in Koehler v. Hill, 60 Iowa 543, 14 N.W. 738,
~
~ 741-42, reb. den., 15 N.W. 609 (1883), where an amendment was determined not to
~
~ have been adopted in accordance with the requirements of the Iowa Constitution
~
~ because it was shown that there were minor word omissions between the amendment
~
proposed by one legislative session and that proposed by a subsequent legislative
~
~
session, which received the majority of the votes at election:
~
~ 18
~
~
~
"Not only so, but each house of each general assembly must agree to the same
amendment, and it must be adopted by the electors. It matters not if not only
every elector, but every adult person in the state, should desire and vote for an
amendment to the constitution, it cannot be recognized as valid unless such
vote was had in pursuance of, and in substantial accord with, the requirements
of the constitution. If, then, both houses of the eighteenth general assembly did
not agree to the resolution which was adopted and ratified by the electors at the
special election held for that purpose, it is not a part of the constitution, and
cannot be so recognized."
Constitutions are general frameworks of government and are considered
paramount and supreme law. Because they should not be changed for light or
transient causes, propositions to change a constitution by amendment are major
undertakings. Not only is it hard to amend a constitution, it is also hard to repeal an ·
amendment once it has become a feature of the constitution. This is in contrast with
ordinary legislation, which is, comparatively, easier to enact, change or repeal.
Statutes can be passed on one day and amended or repealed the next. Thus, it is quite
apparent that constitutional amendments are far more important, when considering
their adoption, than enactment of ordinary legislation. Since they are relatively more
important than ordinary legislation, an examination of the preciseness of concurrence
in legislation required by the state courts is invaluable in determining the preciseness
of concurrence required to adopt a constitutional amendment.
The proposition of law demonstrated by the state cases in reference to the
enactment of ordinary legislation is that both legislative bodies must adopt the same
bill and the same bill must be presented to the governor for his approval or rejection.
19
~
~
~
~
~ If there are material differences between the bill adopted by one legislative body and
(ffP'
that adopted by the other, or if there are differences between that which is adopted by
~
~ both houses and the bill approved by the governor, the state courts will hold that there
~
(P' was no valid enactment of the statute. See Ashcroft v. Blunt, 696 S.W.2d 329 (Mo.
~
f'l'*' bane 1985); Statev. Fridley, 126Ariz. 419,616 P.2d 94, (Ariz.App. Div. I 1980); and
~
Watts v. Town ofHomer, 207 So. 2d 844 (La.App. 2 Cir. 1968). If this preciseness is
~
~
required for ordinary legislation, then at least the same or a more stringent standard
~
~ is required in the adoption of a constitutional amendment.
~
~ An excellent example of a case dealing with concurrence in a proposed bill is
~
Moog v. Randolph, 77 Ala. 597 (1884). Here, the Alabama legislature had adopted
~
~
a bill which contained a certain phrase inserted in the same by way of amendment. In
r"
~ the bill sent to the governor, this phrase had been deleted, probably through error.
~
~ Nonetheless, the Alabama Supreme Court struck the entire act, and in doing so stated:
~
~
"I take it furthermore as a sound rule, also settled by our decisions, that if the
bill which is passed by the General Assembly varies materially, in substance
~
and legal effect, from that which is approved by the Governor - especially
~
where this subject of variance involves a matter of amendment, without the
~
incorporation of which in the bill one of the houses refused to concur with the
~ other in its final passage- then there exists such a want of legal and actual
~ identity between the bill passed and the one approved, as that neither of them
~ acquires the force of a valid and constitutional enactment. In such a case, the
~ bill passed by the General Assembly is not the one approved by the Governor,
and the one approved by the Governor is, e converso, not the one passed by the
~
General Assembly. The courts would be assuming too much, to presume that
~
the same reasons which induced the one house to refuse to concur with the
~
other, except on the condition of incorporating its amendment, might not
~
(P" 20
~
~
r'
~
~
(f!A
~
~
likewise operate to induce the Governor to withhold his approval of the entire
~
measure, without which it must have failed to become a law," Id., at 599.
~
"Let us suppose, for illustration, that the bill in its complete form, as it passed
~ the two houses, had been signed by the presiding officers of these respective
~ bodies, and had been presented to the Governor for his approval, and he had
~ drawn his pen through this same amendment, and, after thus expunging it, had
~ approved the residue of the measure, this being done as a condition precedent
~ to affixing his signature. Would there not exist, in such a case, precisely the
~
same difference in fact between the bill passed and that approved, as is here
presented? The part expunged in the one case, and the part omitted in the other,
~
being identical, the identity of the remainder is axiomatic. Could any one
~ seriously contend, that the approval of a part of a measure, however honestly
~ done in the conviction of its propriety, would operate to give any legal force
~ to the part thus approved? And yet, where is the difference, in practical effect,
~ between the two cases? The clear logic of the case lies in the axiom, that a bill
f" is an entirety, and a law is the product of the combined, harmonious and
r' unanimous action of the legislative and executive departments of government,
each acting strictly within the scope of its constitutional authority, and
~
according to the prescribed forms of the constitutional mandate," Id., at 600.
~
~ This is an established proposition of law in Alabama and the Alabama Supreme
~
~ Court has invalidated other pretended acts of legislation on this basis. See King
~
~ Lumber Company v. Crow, 155 Ala. 504, 46 So. 646 (1908); Mayor and Aldermen
~
ofWestEndv. Simmons, 165 Ala. 359,51 So. 638 (1910); Yancy v. Waddell, 139 Ala.
~
~
524,36 So. 733 (1904); and Board ofRevenue ofJefferson County v. Crow, 141 Ala.
~
~ 126,3 7 So. 469, (Ala. 1904). A large number of other courts have held similarly. See
~
r' Rogers v. State, 72 Ark. 565, 82 S.W. 169 (1904); McDougal v. Davis, 201 Ark.
~
1185, 143 S.W.2d 571 (1940); State v. Deal, 24 Fla. 293,4 So. 899 (1888); Volusia
t'
~
County v. State, 98 Fla. 1166, 125 So. 375 (1929), reb. den., 125 So. 813 (1930);
~
('P'
~ 21
F'
~
~
State v. Skaley, 108 Fla. 506, 146 So. 544 (1933); Hillsborough County v. Temple
Terrace Assets Co., 111 Fla. 368, 149 So. 473 (1933); State v. City of Sanford, 113
Fla. 750, 152 So. 193 (1934); People v. Lueders, 283 Ill. 287, 119 N.E. 339 (1918);
State v. Laiche, 105 La. 84, 29 So. 700, 701 ( 190 I); County Commissioners of
Washington County v. Baker, 141 Md. 623, 119 A. 461 (1922); Carnegie Institute of
Medical Laboratory Technique, Inc. v. Approving Authorityfor Schools for Training
Medical Laboratory Technologists, 213 N.E.2d 225 (Mass. 1965); Rode v. Phelps,
80 Mich. 598, 45 N.W. 493 (1890); State v. McClelland, 18 Neb. 236, 25 N.W. 77
(1885); Weis v. Ashley, 59 Neb. 494,81 N.W. 318 (1899); Moore v. Neece, 80 Neb.
600, 114 N.W. 767 (1908); In re Jaegle, 83 N.J.L. 313, 85 A. 214 (1912); In re
Kornbluh, 134 N.J.L. 529,49 A.2d 255 (1946); Oregon Business and Tax Research,
Inc. v. Farrell, 176 Ore. 532, 159 P.2d 822 (1945); Fuqua v. Davidson County, 189
Tenn. 645, 227 S.W.2d 12 (1950); State v. Wendler, 94 Wis. 369, 68 N.W. 759
(1896); State v. Wisconsin State Board of Medical Examiners, 172 Wis. 317, 177
N.W. 910 (1920); and State v. Swan, 7 Wyo. 166,51 P. 209 (1897).
In this case, Wisconsin amended the amendment that Congress proposed, yet
Congress did not reciprocate to this change. Wisconsin thus did not agree with the
amendment that Congress proposed.
C. Conclusive Presumptions Are Unconstitutional.
In my complaint, I allege some very simple facts. The U.S. Constitution
22
~
~
~
~ requires ''three-fourths" of the States to ratify constitutional amendments. In 1913,
~
there were 48 States here in the United States of America, and thus it was required
~
~ that 36 states ratify the Seventeenth Amendment. Secretary Bryan claimed in his
~
fA' proclamation of ratification that exactly 36 states had ratified this amendment and
(fA
~ thus it was a part of the U.S. Constitution, and he issued such proclamation pursuant
f#'A
to Revised Statutes §205 quoted above. The federal courts hold that the question of
~
~
ratification of an amendment as proclaimed by the Secretary of State presents not a
~
~ judicial but a political question which the courts cannot address, those courts
~
~ according to that proclamation a "conclusive" or "irrebuttable presumption". I argue
~
here that conclusive presumptions are unconstitutional, at least in this context of
~
~ according Secretary Bryan's proclamation conclusive effect. See Medlin v. County
~
~ of Henrico Police, 34 Va. Ct. App. 396, 407 n.5, 542 S.E.2d 33, 39 n.5 (2001)
~
~ ("irrebuttable presumptions are unconstitutional").
~
~
"A conclusive presumption is irrebuttable; 'when fact B is proven, fact A must
~
be taken as true, and the adversary is not allowed to dispute this at all'." Hammontree
~
~
v. Phelps, 605 F.2d 1371, 1374 fn 3 (5th Cir. 1979). Here, "fact B" as noted above
~
r' is Secretary Bryan's 1913 proclamation that the Seventeenth Amendment was
~
~ ratified, wherein he claimed that the 36 States that ratified the amendment included
"
~
~
Wisconsin and California. What cannot be disputed is whether Wisconsin and
California did in fact ratify the amendment, and "fact A" in the above illustration is
~
~ 23
~
"'
~
fF'
fP'
(l!i\ the supposed facts that Wisconsin and California did in fact and as a matter of law
(fiW!A
ratify the amendment. However, legitimate public records from these States present
~
~ facts far different and exactly opposite: Wisconsin rejected the amendment that
~
~ Congress proposed because it amended this amendment, and California never voted
~
~ on it. The federal courts have held that proclamations like Secretary Bryan's issued
~
pursuant to Revised Statutes §205 are conclusive, and the falsity of such a
~
~ proclamation cannot be shown. Thus, Revised Statutes §205 has been construed so
~
~ as to conclusively preclude impeachment of such proclamations.
~
~ In Heiner v. Donnan, 285 U.S. 312, 52 S. Ct. 358 (1932), the U.S. Supreme
~
Court was concerned with a conclusive presumption created by statute that gifts made
~
~
by a deceased within two years of death were made in contemplation of death and
~
~ were thus includible within the decedent's estate for tax purposes. In declaring this
r:'
~ statute unconstitutional because it created an irrebuttable presumption, the Supreme
r'
~
Court stated:
~
"[A] statute which imposes a tax upon an assumption of fact which the
~
taxpayer is forbidden to controvert is so arbitrary and unreasonable that it
~ cannot stand under the Fourteenth Amendment," Id., at 325.
f!'
~ "A rebuttable presumption clearly is a rule of evidence which has the effect of
~ shifting the burden of proof [citation omitted]; and it is hard to see how a
~ statutory rebuttable presumption is turned from a rule of substantive law as the
~
result of a later statute making it conclusive. In both cases it is a substitute for
proof; in the one open to challenge and disproof, and in the other conclusive.
~
However, whether the latter presumption be treated as a rule of evidence or of
~
substantive law, it constitutes an attempt, by legislative fiat, to enact into
~
~ 24
~
(F'
r'
existence a fact which here does not, and cannot be made to, exist in actuality,
and the result is the same .... This court has held more than once that a statute
creating a presumption which operates to deny a fair opportunity to rebut
it violates the due process clause of the Fourteenth Amendment," Id., at
329. [emphasis added]
"If a legislative body is without power to enact as a rule of evidence a statute
denying a litigant the right to prove the facts of his case, certainly the power
cannot be made to emerge by putting the enactment in the guise of a rule of
substantive law," Id., at 329.
There are lots of legal presumptions found in the law, and one concerns
presumptions regarding the mailing of letters, a simple illustration that happens to be
directly relevant here. During the VietNam war, there were lots of draft resisters who
were prosecuted for engaging in that conduct. Pursuant to those draft laws, certain
regulations had been promulgated which declared that the mailing of a notice to
report for induction conclusively presumed that the draftee had been notified of such
induction. In prosecutions for draft evasion which were premised upon this particular
regulation, the validity of it was naturally drawn into question. In the first case
concerning this issue, United States v. Bowen, 414 F.2d 1268, 1273 (3rd Cir. 1969),
this regulation providing for an irrebuttable presumption that a mailed letter was
received and provided notice to the addressee was held unconstitutional:
"The regulation in effect creates an 'irrebuttable or conclusive presumption'
that mail sent is received. Such a presumption would make irrelevant any
evidence the defendant-appellant did offer or might have offered to prove he
did not receive the forms. Even if we were not dealing with a regulation that
involved the critical issue of notice, the regulation cannot stand. We believe
the regulation to be unconstitutional as violative of the due process clause of
25
r
F'
~
~
~
~ the Fifth Amendment insofar as it purports to establish such an irrebuttable
presumption.
~
~ "No administrative agency, nor even a legislature, may make the proof of one
~
fact conclusive proof of another fact in any proceeding, civil or criminal, to
~ the detriment of a private party." [emphasis added]
~
~ Following Bowen was a decision of an identical nature in United States v.
~
~ Simmons, 476 F.2d 33, 37 (9th Cir. 1973). Here, the same regulation at issue in
~
Bowen was likewise found to be unconstitutional as creating an irrebuttable
~
~
presumption:
~
~ "The impact of the regulation and the instruction given, in effect, bootstraps
~ mailing into receipt and receipt into notice. We, therefore, agree with the
('P' appellant that the instruction as given was violative of due process."
~
And in United States v. Perry, 474 F.2d 983, 984 (1Oth Cir. 1973), a conviction
~
~
for draft evasion was likewise being scrutinized on due process grounds. Here, the
~
~ government's proof of the mailing of the notice to report to draftee Perry consisted
~
(i" simply of showing a carbon copy of a letter contained within his administrative
~
~
record. The majority of that court concluded that just producing that copy failed to
~
create any inference of either its mailing or its receipt:
~
~ "Judges Breitenstein and McWilliams believe that the presence of the carbon
"
~
~
copy in the file is proof of neither mailing nor time of mailing and that, on the
record presented, mailing cannot be inferred from writing."
~ That court likewise held as did the courts in both Bowen and Simmons that the
~
(!!!' regulation in question was unconstitutional as creating an irrebuttable presumption.
~
~ 26
~
~
~
~
~
~
F'
~
~ See also Tot v. United States, 319 U.S. 463,63 S.Ct. 1241 (1943); United States v.
~
Lake, 482 F.2d 146 (9th Cir. 1973); and United States v. Belgrave, 484 F.2d 915 (3rd
~
~ Cir. 1973).
~
~ The issue presented here is far more important than presumptions used to
~
~ prosecute draft evaders. This case concerns presumptions having a relationship to the
~
adoption of amendments to the U.S. Constitution. Secretary Bryan's proclamation
~
~
stated that both Wisconsin and California had ratified this amendment, and this mere
~
~ statement is alleged to preclude proof from Wisconsin and California documents and
~
~ records showing otherwise and impeaching that proclamation. But, it is unquestioned
~
~
that Wisconsin amended the constitutional amendment that Congress proposed, which
~
legally means that Wisconsin did not ratify the amendment. But further, having
~
~ personally researched the matter of whether California ratified the amendment, I can
~
~ truthfully state, as supported by the conclusive documents that I have in my
!!"
fF' possession, that California never ratified this amendment. Just this fact alone
~
demonstrates that Secretary Bryan's proclamation of ratification dated May 31, 1913
~
f'A is false in this respect: his claim that California ratified this amendment is fraudulent.
~
~ "Of course, in considering whether the Constitution has been violated, no conclusive
~
presumption of truth is to be accorded the recitals of the proces verbal or of any other
"'
~
~
record, but the true facts may be developed." Collins v. Walker, 329 F.2d 100, 104
~
(5th Cir. 1964).
~
rfP' 27
fP"
~
~
f."'' "'
~
~
~
(#"
~ The federal courts claim that I cannot impeach Secretary Bryan's proclamation
~
because that proclamation, issued pursuant to Revised Statutes §205, creates a
~
~
conclusive presumption. But caselaw has changed substantially since that rule was
,..
~
developed, and now conclusive presumptions, at least in the context of this case, are
~
~ unconstitutional. I thus can impeach Secretary Bryan's proclamation of ratification
~
dated May 31, 1913, and since at most only 34 or 35 states ratified this amendment,
~
~
it was not constitutionally adopted.
~
~ D. Application of Principles to This Appeal.
~
~ In response to my lawsuit, the Secretary of State filed a motion to dismiss,
r'
~ which the trial court granted.
fP'
I attached to my complaint copies of the various public records and documents
~
~
from both Wisconsin and California that conclusively demonstrate the facts I alleged.
~
~ I am not arguing that these documents created any presumption, and the Secretary of
~
~ State, represented by the Attorney General, is more than welcome to engage in his
~
own investigation of the public records of Wisconsin and California to disprove what
~
~
I and many others have found. I feel very confident that the Attorney General will
~
~ eventually realize that my public records from these States prove my allegations and
fP'
r' he will thus stipulate to them.
r'
~
However, at the stage of a motion to dismiss, my allegations must be construed
~
as being true (and they will eventually be shown to be indisputable). Did my
fF'
(IP' 28
~
~
r"
r
~
~
·~
~
~ complaint state a valid cause of action? In Association of Texas Professional
~
Educators v. Kirby, 788 S.W.2d 827, 830 (Tex. 1990), our Supreme Court
~
~ acknowledged that it will follow a modified version of the enrolled bill rule: "when
~
~ the official legislative journals, undisputed testimony by the presiding officers ofboth
~
,..
~ houses, and stipulations by the attorney general acting in his official capacity
conclusively show the enrolled bill signed by the governor was not the bill passed by
~
~
the legislature, the law is not constitutionally enacted. When the official legislative
~
~ journals, presiding officers and attorney general all concur that the enrolled bill is not
~
~ the bill passed by the legislature, the exception applies as a matter of law."
~
(!' Here, I contended that neither Wisconsin nor California validly ratified the
~
Seventeenth Amendment and I offered copies of the actual public records showing
~
~
that these are actual facts. The natural and logical conclusion that follows is that this
f'
~ amendment was "not constitutionally enacted."
(!>'
~ My complaint stated a valid cause of action and the trial court erred when it
~
dismissed it.
~
~ IIIII/
'"'
~ /IIIII
F'
IIIII/
"
~
~
/IIIII
~
~
~ 29
~
f!'
~
PRAYER
For the reasons noted above, the order of the trial court dismissing my lawsuit
should be reversed and th is cause remanded back to that court for further proceedings.
Respectfully submitted this the 25th day of June, 2015 .
r~k~
``
Devvy Kid
Appellant Pro se
P.O. Box 1102
B ig Spring, Texas 79721
432-264-7869
devvyk@npn. net
30
Filed in The District Court
of Travis County, Texas
DEC 0 4 2014
CAUSE NO. D-1-GN-14-003900 At J:lf':{ ¥' M.
Amalia Rodriguez-Mendoza, Clerk
DEVVY KIDD, § IN THE DISTRICT COURT OF
§
Plaintiff §
§
vs. §
§
NANDITA BERRY, § TRAVIS COUNTY, TEXAS
TEXAS SECRETARY OF STATE §
§
Defendant §
§
§ 53rd JUDICIAL DISTRICT
§
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS UNDER RULE 91a
On this day came to be heard, the Motion to Dismiss Under Rule 91 a filed by Defendant
Nandita Berry, in her official capacity as Secretary of State. After reviewing said Motion, any
response thereto, and arguments of counsel, the Court is of the opinion that Defendant's Motion
to Dismiss Under Rule 9la should be GRANTED.
It is therefore ORDERED, ADJUDGED AND DECREED that Defendant's Motion is
granted and that Plaintiff's Original Petition is dismissed with prejudice.
SIGNED on
/
DLc(ftfVl£7, f, 2014.
3t
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document complies with
the type-volume limitations of Tex. R. App. P. 9.4(i)(2). 1 certify that this document
contains 7790 words.
~
evvy Ktdd
dcid
CERTIFICATE OF SERVICE
I hereby certify that I have this date served by email a copy of the foregoing
brief upon the below named counsel for the Secretary of State and have mailed a copy
ofthisbriefto: C-et:T(Fl~p fii\AiL r(.c--c...eLf>l" ~
7ol'f 01~6 uooo '-[13\ 24'-f~
Adam N . Bitter
Attorney General's Office
P.O. Box 12548
Austin, Texas 787 11-2548
Dated this the 25th day of June, 2015.
~kdct
eYVYJ(i(l l
32