August 20, 2015
No. 03-14-00805-CV
IN THE THIRD COURT OF APPEALS
at Austin, Texas
DEWY KTOD,
Appellant,
v.
CARLOS CASCOS,
Texas Secretary of State,
Appellee.
Deceived N
On Appeal from the AUG 2 0 2015
THIRD COURT OF APPEALS
53rd District Court of Travis County EFFREYOKYLE
REPLY BRIEF OF APPELLANT
DEWY KIDD
DEWYKIDD
Appellant Pro se
P.O. Box 1102
Big Spring, Texas 79721
432-264-7869
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
Table of Contents i
Index of Authorities ii
Reply Argument 1
Prayer 7
Certificate of Compliance 7
Certificate of Service 8
INDEX OF AUTHORITIES
Cases: Page:
Albrechtsen v. Bd. ofRegents, 309 F.3d 433 (7th Cir. 2002) 2
Argyropoulos v. City ofAlton, 539 F.3d 724 (7th Cir. 2008) 2
Ass'n of Tex. Prof'I Educators v. Kirby, 788 S.W.2d 827 (Tex. 1990) 5
Brammer-Hoelter v. Twin Peaks Charter Acad, 492 F.3d 1192 (10th Cir. 2007). 2
Burnley v. City ofSan Antonio, 470 F.3d 189 (5th Cir. 2006) 2
Dillon v. Gloss, 256 U.S. 368 (1921) 4, 5
Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602 (Tex. 2012) 2
Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473 (1981) 4
Hamilton v. Southland Christian Sch., 680 F.3d 1316 (11th Cir. 2012) 3
Leserv. Garnett, 258 U.S. 130 (1922) 5
Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910 (7th Cir. 2012) 2
People v. Pomykala, 203 111. 2d 198, 784 N.E.2d 784 (2003) 3
State v. Kelly, 218 Minn. 247, 15 N.W.2d 554 (1944) 4
State v. Russell, 477 N.W.2d 886 (Minn. 1991) 3
Sunbeam Envtl. Servs., Inc. v. Texas Workers' Comp. Ins. Facility, 71 S.W.3d 846
(Tex.App.—Austin 2002, no pet.) 2
Tatum v. Liner, 749 S.W.2d 251 (Tex.App.-San Antonio 1988) 3, 6
Tran v. Tr. ofState Colleges in Colo., 355 F.3d 1263 (10th Cir.2004) 3
ii
United States v. Foster, 789 F.2d 457 (7th Cir. 1986) 2
West's Executors v. Cameron County, 4 S.W.2d 111 (Tex.Civ.App.-San Antonio
1928) 3, 6
Yellow Freight System, Incorporated v. Donnelly, 494 U.S. 820 (1990) 4
Constitutional Provisions and Statutes:
U.S. Constitution, Seventeenth Amendment 4, 5, 6, 7
Revised Statutes §205 1,2,4, 5
in
ARGUMENT IN REPLY
ISSUE: Did the trial court err in dismissing my complaint seeking a Writ
of Prohibition and Injunction?
In response to my complaint in the district court, the Secretary of State filed a
motion to dismiss raising the defenses that I lacked "taxpayer" standing to bring this
lawsuit, and that the doctrine of "sovereign immunity" required that my lawsuit be
dismissed. In my reply to that motion, I addressed these two issues to demonstrate
that I did have standing and that Texas caselaw held that the "sovereign immunity"
defense did not apply here. The district court appears to not have addressed either of
these arguments.
In my opening brief in this appeal, I specifically raised these issues oftaxpayer
standing and sovereign immunity, which the Secretary of State does not challenge in
his brief submitted to this court. By failing to offer any response to these arguments
in his brief filed here, that silence is a concession that I do have standing and that
sovereign immunity is not an issue in this appeal.
But furthermore, in my opening briefI specifically raised the issue that Revised
Statutes §205 as judicially interpreted and construed was unconstitutional as creating
a conclusive presumption. It is remarkable that this extremely important issue is not
addressed by the Secretary of State in his brief, not even with a single sentence in a
footnote. Again, the Secretary of State has waived any response to this issue and
1
concedes my argument that Revised Statutes §205 is unconstitutional. See Sunbeam
Envtl. Servs., Inc. v. Texas Workers' Comp. Ins. Facility, 71 S.W.3d 846, 851
(Tex.App.—Austin 2002, no pet.) (holdingappellantswaived issue ofattorney's fees
by failing to raise it in their initial appellate brief). Waiver is most often committed
by an appellant, but an appellee can waive issues, too. See Fed. Deposit Ins. Corp.
v. Lenk, 361 S.W.3d 602,612 (Tex. 2012)("Lenk's cross-petition for attorney's fees
was not properly raised in the court of appeals, and thus we reject this claim as
well."). Other courts have acknowledged that appellees can waive issues by not
briefing them. See Burnley v. City ofSan Antonio, 470 F.3d 189, 200 n.10 (5th Cir.
2006)(appelleewaived argumentfor appellate attorney's feesby failing to sufficiently
raise the issue in its brief); Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910,
924 (7th Cir. 2012)('The defendants have waived this argument by not developing
it on appeal. See Argyropoulos v. City ofAlton, 539 F.3d 724, 738 (7th Cir. 2008)
(undevelopedargumentsare waived).Theirargumentis in a footnote, consists offour
sentences, and contains no citation to authority. The defendants attempt to
'incorporate... by reference' arguments in their brief to the district court seekingto
dismiss the non-Franklin defendants on this basis, but 'appellate briefs may not
incorporate other documents by reference.' Albrechtsen v. Bd. ofRegents, 309 F.3d
433,435-36 (7th Cir. 2002); see also United States v. Foster, 789 F.2d 457,462 (7th
Cir. 1986)."); Brammer-Hoelter v. Twin Peaks Charter Acad, 492 F.3d 1192, 1207
2
(1Oth Cir. 2007)("Defendants made no argument regarding their interest as employers
either in their motion for summary judgment or in their appellate brief. Accordingly,
we cannot affirm summary judgment on this basis and must assume that Plaintiffs'
interests in speaking on the four remaining matters outweighed Defendants' interests
in managing the work environment. See Tran v. Tr. ofState Colleges in Colo., 355
F.3d 1263,1266 (10th Cir.2004) ('Issues not raised in the opening brief are deemed
abandoned or waived.')"; and Hamilton v. Southland ChristianSch., 680 F.3d 1316,
1318-19 (11th Cir. 2012).
But if this court does not conclude that the Secretary of State has waived this
issue, it is certainly ripe for decision in this appeal.
Here in Texas, conclusive presumptions are unconstitutional. See Tatum v.
Liner, 749 S.W.2d 251,262-63 (Tex.App.-San Antonio 1988)("Mandatory conclusive
presumptions are not permissible in Texas. For every presumption under Texas law,
there is the right of rebuttal; and if the party opposing the presumption is able to
disprove what was presumed, the jury is entitled to discard the presumption."). "Any
such presumption could be removed by proof." West's Executorsv. Cameron County,
4 S.W.2d 111,116 (Tex.Civ.App.-San Antonio 1928). See also People v. Pomykala,
203 111. 2d 198,204,784 N.E.2d 784 (2003)("Thus, under Illinois law, all mandatory
presumptions are now considered to be per se unconstitutional."); State v. Russell,
All N.W.2d 886,891 (Minn. 1991)("This court has recognized that statutes creating
3
conclusive presumptions of law or fact have been almost uniformly declared
unconstitutional as denying due process of law."); and State v. Kelly, 218 Minn. 247,
15 N.W.2d 554, 557 (1944)("Such statutes are of two general types: Those creating
conclusive presumptions of law or fact, and those creating rebuttable presumptions
offact or 'prima facie' proof. Those ofthe first type have met the almost uniform fate
of being declared unconstitutional, as denying due process of law.").
My complaint against the Secretary of State sought at least a declaration that
the Seventeenth Amendment, declared by Secretary Bryan as having been ratified
pursuant to his authority based on Revised Statutes §205, had not been
constitutionally ratified by the requisite number of States. An issue of this nature
involving questions arising under the Constitution ofthe United States is an issue that
can be raised in a Texas court because such questions are not exclusively "federal"
questions that can only be raised in federal court. See Yellow Freight System,
Incorporated v. Donnelly, 494 U.S. 820, 822 (1990)(state courts may exercise
jurisdiction over federally created causes of action as long as Congress has not
explicitly or implicitly made federal court jurisdiction exclusive); and GulfOffshore
Co. v. Mobil Oil Corp., 453 U. S. 473,477-478 (1981).
In Dillon v. Gloss, 256 U.S. 368 (1921), the United States Supreme Court was
confronted with several questions regarding the ratification of the Eighteenth
Amendment providing for prohibition. One matter that the Supreme Court determined
4
in that case is that when an amendment is proposed for ratification, it must be
approved or rejected within a reasonable time: "We do not find anything in the article
which suggests that an amendment, once proposed, is to be open to ratification for all
time, or that ratification in some ofthe states may be separated from that in others by
many years and yet be effective." Id., at 374. "We conclude that the fair inference or
implication from Article V is that the ratification must be within some reasonable
time after the proposal." Id., at 375. The Court in Dillon concluded that an
amendment to the Constitution becomes effective on "the date of its consummation,
and not that on which it is proclaimed". Id., at 376.
The "enrolled bill rule" is one that is judicially created. It has been modified
here in Texas precisely because the rule appears to establish a conclusive
presumption. See Ass 'n ofTex. ProfIEducatorsv. Kirby, 788 S.W.2d 827,829 (Tex.
1990)("The enrolled bill rule is contrary to modern legal thinking, which does not
favor conclusive presumptions that may produce results which do not accord with
fact."). In reference to amendments to the U.S. Constitution, this enrolled bill rule is
also judicially created. See Leser v. Garnett, 258 U.S. 130, 137 (1922).
But this federal "enrolled bill rule" applying to constitutional amendments is
valid only because of Revised Statutes §205. If §205 is unconstitutional, then
Secretary Bryan had no authority to declare ratification of the Seventeenth
Amendment. Section 205 is unconstitutional because, as construed by the U.S.
5
Supreme Court, it contains a conclusive presumption, and "[mandatory conclusive
presumptions are not permissible in Texas." Tatum v. Liner, 749 S.W.2d 251,262-63
(Tex.App.-San Antonio 1988). I offered irrefutable proof that neither California nor
Wisconsin ratified this amendment. "Any such presumption could be removed by
proof." West's Executors v. Cameron County, 4 S.W.2d 111,116 (Tex.Civ.App.-San
Antonio 1928).
Clearly, state governments create public records. The current California
Constitution, in Art. IV, §7, requires each house of the legislature to keep a journal
of its proceedings as does Art. IV, §10, of the present Wisconsin Constitution.
Undoubtedly, the constitutions of these States had either these or similar provisions
in effect in 1913. Those public records from these States that bear upon the question
ofthe ratification ofthe Seventeenth Amendment have been obtained by me and such
records constitute evidence that these States failed to legally ratify this amendment.
To blindly assert as does the Secretary of State that there might be missing records
showing ratification by these States is a baseless and groundless assertion.
This issue is very important. In 1787,the original 13 States ofthis country sent
delegates to Philadelphia to draft a new constitution for the federal government
known as the United States of America. That Constitution was ratified and a new
government for the United States was created. New States, including Texas, have
been admitted into this Union on an equal footing with the original States. Legally,
6
the States created the government for the United States of America and they are its
masters. The government ofthe United States of America is the servant ofthe States.
This court has every legal and moral right to pass judgment on the events
surrounding the ratification of the Seventeenth Amendment.
PRAYER
For the reasons noted above, the order of the trial court dismissing my lawsuit
should be reversed and this cause remanded back to that court for further proceedings.
Respectfully submitted this the 17th day of August, 2015.
u
Jevvy Kid<£7v
t^
Appellant Pro se
P.O.Box 1102
Big Spring, Texas 79721
432-264-7869
devvyk@npn.net
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document complies with
the type-volume limitations ofTex. R. App. P. 9.4(i)(2). I certify that this whole brief
contains 2086 words.
^^ &cld
levvy Kidd
CERTIFICATE OF SERVICE
I hereby certify that I have this date served by email a copy of the foregoing
briefupon the below named counsel for the Secretary of State and have mailed a copy
ofthis briefto'.60ttfmD MfilL tfet&\fT> Toll OlSb 0000