Thompson et al v. Masterson et al

1
In the United States District Court
for the District of Kansas
_____________
Case No. 23-cv-04120-TC
_____________
MIKE THOMPSON, ET AL.,
Plaintiffs
v.
TY MASTERSON, ET AL.,
Defendants
_____________
MEMORANDUM AND ORDER
Two Kansas state legislators filed suit against the leaders of the
Kansas House and Senate, arguing that they applied a provision of the
Kansas Constitution in a manner that violates Article V of the United
States Constitution. Doc. 1. The parties have filed cross-motions for
judgment on the pleadings, Docs. 33 and 35, and several proposed in-
tervenor defendants have filed an objection to the Magistrate Judge’s
denial of their motion to intervene. Doc. 29. For the following reasons,
Plaintiffs’ motion for judgment on the pleadings is granted, Defend-
ants’ motion for judgment on the pleadings is denied, and the pro-
posed intervenor defendants’ objection is overruled.
I
A
Two of the pending motions implicate Federal Rule of Civil Pro-
cedure 12 and another implicates Federal Rule of Civil Procedure 72.
Each rule has its own standard that governs resolution. The following
describes each applicable standard.
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1. When a magistrate judge issues a report and recommendation
on a dispositive pretrial matter,1 a party objecting to the recommenda-
tion must “serve and file specific written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The district
judge must then
determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The dis-
trict judge may accept, reject, or modify the recom-
mended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). This means that
objections to a magistrate judge’s recommended disposition must be
“both timely and specific to preserve an issue for de novo review by
the district court . . . .” United States v. One Parcel of Real Prop., 73 F.3d
1057, 1060 (10th Cir. 1996). To be timely, the objection must be made
within 14 days after service of a copy of the recommended disposition.
Fed. R. Civ. P. 72(b)(2). Objections are sufficiently specific if they “fo-
cus the district court’s attention on the factual and legal issues that are
truly in dispute.” One Parcel of Real Prop., 73 F.3d at 1060. Where a party
fails to make a proper objection, a district court may review the rec-
ommendation under any standard it deems appropriate, even for clear
error. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations
omitted); Gilbert v. United States Olympic Comm., 423 F. Supp. 3d 1112,
1125 (D. Colo. 2019).
2. Rule 12(c) permits any party to file a motion for judgment on
the pleadings “[a]fter the pleadings are closed,” which means “upon
the filing of a complaint and answer.” Progressive Cas. Ins. Co. v. Estate of
Crone, 894 F. Supp. 383, 385 (D. Kan. 1995). When ruling on a motion
under Rule 12(c), the court must “accept all facts pleaded by the non-
moving party as true and grant all reasonable inferences from the
pleadings in that party’s favor.” Martin Marietta Materials, Inc. v. Kansas
1 It is not clear that a motion to intervene is dispositive. Contra Doc. 29 at 1
n.1. There is debate among the district courts on this issue. See, e.g., Nat’l Liab.
& Fire Ins. Co. v. Carman, No. 17-38, 2018 WL 4080576, at *1 n.1 (D.R.I. Aug.
27, 2018) (remarking on the dissension). Attempting to resolve that debate is
unnecessary in this case because the standard does not affect the resolution.
As a result, the Magistrate Judge’s Order will be reviewed as if the issue is
dispositive.
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Dep’t of Transp., 810 F.3d 1161, 1171 (10th Cir. 2016). Judgment on the
pleadings should not be granted “unless the moving party has clearly
established that no material issue of fact remains to be resolved and
the party is entitled to judgment as a matter of law.” Colony Ins. Co. v.
Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (quotation marks omitted).
As with a motion to dismiss, the plaintiff’s complaint must plead a
plausible claim. Martin Marietta, 810 F.3d at 1171.
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 556
(2007)). A claim need not be probable to be considered plausible. Id.
But the facts, viewed in the light most favorable to the claimant, must
adduce “more than a sheer possibility that a defendant has acted un-
lawfully.” Id.
Plausibility is context specific. The requisite showing depends on
the claims alleged, and the inquiry usually starts with determining what
the plaintiff must prove at trial. See Comcast Corp. v. Nat’l Ass’n of Afr.
Am.-Owned Media, 589 U.S. 327, 332 (2020); see also Robbins v. Oklahoma,
519 F.3d 1242, 1248–49 (10th Cir. 2008) (comparing the factual alle-
gations required to show a plausible personal injury claim versus a
plausible constitutional violation).
B
Two Kansas legislators—one Senator and one Representative—
filed a lawsuit against the leaders of the Kansas Senate and the Kansas
House of Representatives. Doc. 1.2 The Plaintiffs are Mike Thompson,
a member of the Kansas Senate, and Michael Murphy, a member of
the Kansas House of Representatives. Id. at ¶¶ 12, 13. The two De-
fendants are Ty Masterson, the President of the Kansas Senate, and
Daniel Hawkins, the Speaker of the Kansas House of Representatives.
Id. at ¶¶ 14, 15.
1. The parties’ dispute concerns the power of state “Legislatures”
to request the Congress to convene a constitutional convention. In es-
sence, there is a dispute as to whether the Kansas Constitution
2 All document citations are to the document and page numbers assigned in
the CM/ECF system.
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conflicts with what the United States Constitution commands. In the
event of a conflict, the United States Constitution controls. See Arm-
strong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015) (citing Gib-
bons v. Ogden, 22 U.S. 1, 9 (1824)) (noting that courts “shall regard the
Constitution, and all laws made in Pursuance thereof, as the supreme
Law of the Land,” and that they “must not give effect to state laws that
conflict with federal laws”).
The claim at issue in this suit is grounded in Article V of the United
States Constitution. That Article reads as follows:
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 Con-
stitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in
three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Pro-
vided that no Amendment which may be made prior
to the Year One thousand eight hundred and eight
shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no
State, without its Consent, shall be deprived of its equal
Suffrage in the Senate.
U.S. Const. art. V (emphasis added). The first half of the Article lays
out three clauses concerning proposing amendments, applying for a
convention, and ratifying a proposed amendment. Id. This dispute con-
cerns the application clause.
More than a century ago, the Supreme Court—in a ratification
clause case—interpreted the term “Legislatures” in Article V. The
Court held that the term refers to “the representative body which made
the laws of the people.” Hawke v. Smith, 253 U.S. 221, 227 (1920). This
is the meaning that the word was commonly understood to have at the
founding. Id.; see Legislature, A Dictionary of the English Language (1st
ed. 1755) (“The power that makes laws. Without the concurrent con-
sent of all three parts of the legislature, no law is or can be made.”).
The Court has held that state legislatures’ power under Article V to
ratify a proposed amendment “has its source in the federal
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Constitution.” Hawke, 253 U.S. at 230. Because the power to ratify “is
a federal function derived from the federal Constitution[,] it transcends
any limitations sought to be imposed by the people of a state.” Leser v.
Garnett, 258 U.S. 130, 137 (1922).
The purported conflict arises in the language of Article II, Section
13 of the Kansas Constitution. That provision purports to limit the
power of the Kansas Legislature to ratify an amendment or to apply
for a constitutional convention by requiring a supermajority of the
Legislature. It declares as follows:
A majority of the members then elected (or appointed)
and qualified of each house, voting in the affirmative,
shall be necessary to pass any bill. Two-thirds (2/3) of the
members then elected (or appointed) and qualified in each house,
voting in the affirmative, shall be necessary to ratify any amend-
ment to the Constitution of the United States or to make any
application for congress to call a convention for proposing amend-
ments to the Constitution of the United States.”
Kan. Const. art. II, § 13 (emphasis added). The Section was originally
adopted by convention in 1861 as part of the Kansas Wyandotte Con-
stitution without a supermajority requirement. That provision was
added in 1974.3 See 1974 Kan. Sess. Laws at 1536.
2. The historical facts in this case are undisputed. On March 22,
2023, simple majorities of the Kansas Senate and the Kansas House of
Representatives voted to pass concurrent resolutions applying to the
United States Congress for a constitutional convention. Doc. 1 at ¶¶ 1,
17, 22; see Docs. 1-1 & 1-2. These actions were part of the 2023 legis-
lative session. Docs. 1-1 & 1-2. Despite the simple majorities, Defend-
ants both (and separately) ruled that the concurrent resolutions did not
pass because they did not receive two-thirds of the vote required by
Article II, Section 13 of the Kansas Constitution. Doc. 1 at ¶¶ 3, 28,
29. Were it not for Section 13’s supermajority requirement, Defendants
3 It appears that the Kansas Supreme Court has not construed Section 13 in
its current form. This is a case of first impression under Kansas law.
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would have ruled that the concurrent resolutions passed.4 Id. at ¶ 34.
Plaintiffs filed suit in federal court. Doc. 1. They bring a single
count under 42 U.S.C. § 1983, arguing that Defendants’ application of
Article II, Section 13 of the Kansas Constitution to their affirmative
vote in support of applying to Congress for a constitutional conven-
tion violates Article V of the United States Constitution. Id. at ¶ 40.
They seek judgment declaring that the concurrent resolutions passed
both chambers of the Kansas Legislature and were therefore adopted.
Id. at ¶ 41.
Soon after Plaintiffs filed suit, several Kansas state senators and
Kansas state representatives sought leave to intervene as defendants.
Doc. 10. Magistrate Judge Birzer denied their request. Doc. 28. The
proposed intervenor defendants now object to that ruling. Doc. 29.
Both Plaintiffs and Defendants oppose that objection. Docs. 30 & 31.
Both sides move for judgment on the pleadings. Docs. 33 & 35.
Plaintiffs request declaratory judgment that Article II, Section 13 of
the Kansas Constitution violates Article V of the United States Con-
stitution. Doc. 39-1. Defendants request judgment as well, arguing that
this case presents a nonjusticiable political question and that Section
13 is constitutional. Doc. 38-1.
II
The proposed intervenor defendants are adequately represented by
the Defendants. And Article II, Section 13 of the Kansas Constitution
seeks to restrict the power conferred by Article V of the United States
4 At the time of the vote, the Kansas House of Representatives had a rule
that referenced Section 13’s supermajority requirement. That rule, which has
since been repealed, was not the basis of Defendants’ decision; their ruling
on the vote never mentioned the House rule and only relied on Section 13 as
the basis of the decision. Doc. 1 at ¶ 28. As a result, it does not permit dis-
missing Plaintiffs’ claim as one that is not a live case or controversy or some-
how not yet ripe. Contra Doc. 38-1 at 11. Not only did it play no role in the
challenged decision, but the rule did not independently impose a superma-
jority requirement; it merely referenced the Kansas Constitution’s require-
ment. Id. at 11 (noting that the rule required “the number of votes required
by the Constitution of the state of Kansas”). As a result, it has no bearing on
the merits of Section 13 or any issue in this litigation. Doc. 49; see Rules of
the Kansas House of Representatives, 2025-2026 Biennium § 2707(b).
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Constitution. Accordingly, the proposed intervenor defendants’ objec-
tion is overruled, the Defendants’ motion is denied, and the Plaintiffs’
motion is granted.
A
There are several matters presented in the parties’ briefs and re-
lated procedural history that must be addressed before the merits of
the alleged conflict can be considered. Each is explained more fully
below.
1
The proposed intervenor defendants object to Judge Birzer’s de-
nial of their motion to intervene. Doc. 29. They argue that Judge Birzer
erred when she found that their interests were adequately represented
by the Defendants. Doc. 29 at 7–8.
Intervention is governed by Federal Rule of Civil Procedure 24.
That rule allows intervention as of right for anyone who “claims an
interest relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest,
unless existing parties adequately represent that interest.” Fed. R. Civ.
P. 24(a)(2). To intervene, movants must show that their application is
timely, that they claim an interest in the subject of the action, that their
interest may be impaired, and that their interest is not adequately rep-
resented by the defendant. Pub. Serv. Co. of New Mexico v. Barboan, 857
F.3d 1101, 1113 (10th Cir. 2017). The only dispute is whether Defend-
ants adequately represent the proposed intervenor defendants’ inter-
ests. Docs. 17 at 1–3 & 20 at 2; Doc. 29 at 1–2.
Judge Birzer’s conclusion that the proposed intervenor defendants
are adequately represented is correct. Contra Doc. 29 at 26. The Tenth
Circuit has succinctly stated the governing rule: “When the applicant
and an existing party share an identical legal objective, we presume that
the party’s representation is adequate.” Barboan, 857 F.3d at 1113–14.
The proposed intervenor defendants and the Defendants have identi-
cal interests in that their legal objective is to uphold Section 13’s su-
permajority requirement. Compare Doc. 38-1 (seeking to uphold the
constitutionality of Section 13), with Doc. 10-1, and Doc. 11 (same). As
a result, the proposed intervenor defendants’ objection is overruled.
See Barboan, 857 F.3d at 1114 (denying motion to intervene on appeal
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because the intervenor and a party had “the same legal objective”); Tri-
State Generation & Transmission Ass’n, Inc. v. New Mexico Pub. Regul.
Comm’n, 787 F.3d 1068, 1073 (10th Cir. 2015) (affirming the district
court’s denial of a motion to intervene when the intervenors and the
defendants had “identical litigation objectives”).
The proposed intervenor defendants’ counter arguments are un-
persuasive. They contend that they are not adequately represented be-
cause they have different political goals from the defendants. Specifi-
cally, they argue that Defendant Masterson has previously stated that
he hoped to pass the resolutions at issue to “settle the question of
what’s required for Kansas to [call for a convention].” Doc. 29 at 7.
And they further argue that the Kansas Attorney General, who is
tasked with defending Section 13 in this litigation, has “personally ex-
pressed support for a constitutional convention.” Id. These arguments
are a non sequitur. For one thing, political speech is not always an indi-
cation of an actor’s true intent. See FEC v. Wis. Right to Life, Inc., 551
U.S. 449, 467–69 (2007) (remarking on the incongruence between
speech and intent). And for another, the critical inquiry is the legal ob-
jective of the Defendants. Differing political calculations between the
Defendants and the proposed intervenor defendants is immaterial be-
cause they are united in their desire to uphold the provision of the
Kansas Constitution. Statewide Masonry v. Anderson, 511 F. App’x 801,
806–07 (10th Cir. 2013) (citing Bottoms v. Dresser Indus., Inc., 797 F.2d
869, 872–73 (10th Cir. 1986)) (noting that “their common objective
. . . is the controlling consideration”). Finally, there has been no show-
ing that Defendants are failing to meaningfully advocate for this legal
position. The substance of Defendants’ arguments offered in support
of Section 13 is robust, meaningful, and, more telling, not materially
different from those of the proposed intervenor defendants. Compare
Doc. 38-1, with Docs. 10, 10-1, 29. Because the proposed intervenor
defendants do not contest that they share the common objective with
the Defendants of upholding Section 13, their attack on Judge Birzer’s
decision fails.
2
Defendants argue that this case presents a nonjusticiable political
question. Doc. 38-1 at 20. Resolution of that argument is guided by the
six factors first identified in Baker v. Carr, 369 U.S. 186, 217 (1962); see
Hanson v. Wyatt, 552 F.3d 1148, 1159 (10th Cir. 2008).
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Article III of the Constitution gives federal courts a non-delegable
duty to decide cases and controversies before them, Marbury v. Madison,
5 U.S. 137, 173–74 (1803), even those they “would gladly avoid.” Zivo-
tofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012) (quotation
marks omitted). There is a limited—and narrow—exception to this
rule known as the political question doctrine. Id. When a case presents
a political question, courts lack the authority to decide it, and the dis-
pute is considered nonjusticiable. Id.
The Court has laid out six factors that are important in the analysis
of whether a case presents a political question. These factors are as
follows:
Prominent on the surface of any case held to involve a
political question is found [1] a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially discov-
erable and manageable standards for resolving it; or [3]
the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discre-
tion; or [4] the impossibility of a court's undertaking
independent resolution without expressing lack of the
respect due coordinate branches of government; or [5]
an unusual need for unquestioning adherence to a po-
litical decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by
various departments on one question.
Hanson, 552 F.3d at 1159–60 (quoting Baker, 369 U.S. at 217) (altera-
tions in original). The Court pays particular attention to the first two
factors. See Zivotofsky, 566 U.S. at 195 (“We have explained that a con-
troversy involves a political question where there is a textually demon-
strable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable stand-
ards for resolving it.”) (quotation marks and alterations omitted).
This case does not present a political question. Contra Doc. 38-1 at
7. Instead, it presents a straightforward constitutional question:
Whether Article V permits limits on when and how state legislatures
exercise their application power. As numerous cases have held, that is
a question that is textually committed to the judiciary. Dyer v. Blair, 390
F. Supp. 1291, 1301 (N.D. Ill. 1975) (Stevens, J.) (concluding that a
ratification claim under Article V was not a political question); State of
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Idaho v. Freeman, 529 F. Supp. 1107, 1124–46 (D. Idaho 1981) (thor-
oughly analyzing the question and concluding the same), vacated on other
grounds by Carmen v. Idaho, 459 U.S. 809, 103 S. Ct. 22 (1982). And de-
claring what the text of the Constitution means is a familiar endeavor
for federal courts. See Zivotofsky, 566 U.S. at 201 (noting that “is what
courts do”). Moreover, there is no policy determination at play or a
need to defer to a coordinate branch of government. See Powell v.
McCormack, 395 U.S. 486, 548–49 (1969). Finally, no political decision
has been made such that there is a need to adhere to it or that judicial
action would create multifarious pronouncements.
Defendants’ arguments to the contrary are unavailing. They argue
that several of the Baker factors point to a political question. Doc. 38-
1 at 8. Specifically, they focus their arguments on whether there has
been a valid application for a convention, and they contend that reso-
lution of that question is political. See Doc. 38-1 at 8–9. But that is not
a question presented by the Plaintiffs’ complaint. The sole dispute is
whether the Kansas Constitution can limit the Kansas Legislature’s
ability to call for a convention under Article V. That question is one of
pure constitutional interpretation, and it falls squarely within the prov-
ince of the judiciary. Marbury, 5 U.S. at 177; Powell, 395 U.S. at 548–49.
What Congress might choose to do with such an application is up to
Congress to decide.
3
Another preliminary question is whether Plaintiffs have standing
to sue. Plaintiffs rely on the doctrine of legislative standing. Doc. 39-1
at 7.
“Article III confines the federal judicial power to the resolution of
‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413,
423 (2021) (quoting U.S. Const. art. III, § 2, cl. 1); see also Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016). “For there to be a case or controversy
under Article III, the plaintiff must have . . . standing.” TransUnion, 594
U.S. at 423. “Regardless of the stage of litigation at which [federal
courts evaluate] standing, the standing inquiry remains focused on
whether the party invoking jurisdiction had a sufficient stake in the
outcome when the suit was filed.” Rio Grande Found. v. Oliver, 57 F.4th
1147, 1162 (10th Cir. 2023). Plaintiffs “must demonstrate standing sep-
arately for each form of relief sought.” WildEarth Guardians v. Pub. Serv.
Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012) (quoting Friends of the
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Earth, Inc. v. Laidlaw Env’t Serv. (TOC), Inc., 528 U.S. 167, 185 (2000))
(internal quotation marks omitted).
Whether Plaintiffs have standing is directly answered by Coleman v.
Miller, 307 U.S. 433 (1939).5 In that case, the Supreme Court held that
individual legislators whose votes would have been sufficient to defeat
a resolution ratifying a proposed amendment to the Constitution had
standing to sue. Coleman, 307 U.S. at 446. Coleman stands “for the prop-
osition that legislators whose votes would have been sufficient to de-
feat (or enact) a specific legislative Act have standing to sue if that leg-
islative action goes into effect (or does not go into effect), on the
ground that their votes have been completely nullified.” Raines v. Byrd,
521 U.S. 811, 823 (1997).
As in Coleman, the Plaintiffs here have standing because their votes
were completely nullified. Plaintiffs’ votes would have been sufficient
to apply for a constitutional convention were it not for Section 13.
Doc. 1 at ¶ 34. Thus, Plaintiffs complain of the same individual injury
that the Supreme Court recognized in Coleman. See Coleman, 307 U.S. at
438 (finding standing because legislators’ “votes against ratification
have been overridden and virtually held for naught although if they are
right in their contentions their votes would have been sufficient”); Kerr
v. Hickenlooper, 744 F.3d 1156, 1171 (10th Cir. 2014) (affirming the dis-
trict court’s finding of legislative standing where legislators “alleged an
injury to the plain, direct and adequate interest in maintaining the ef-
fectiveness of their votes”) (quotation marks omitted), vacated on other
grounds by Hickenlooper v. Kerr, 576 U.S. 1079 (2015); cf. Raines, 521 U.S.
at 824 (finding no standing because the plaintiffs “have not alleged that
they voted for a specific bill, that there were sufficient votes to pass
the bill, and that the bill was nonetheless deemed defeated”).
Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576
U.S. 787 (2015), confirms this conclusion. In that case, the Arizona
Legislature filed suit arguing that an Arizona initiative that removed
redistricting authority from the state legislature and placed it in an in-
dependent commission violated the Elections Clause of the U.S. Con-
stitution. Arizona State Legislature, 576 U.S. at 792. The Court found
that the Arizona Legislature had standing because the injury at issue
5 Defendants make no argument that Plaintiffs lack standing. See generally
Docs. 38-1 & 45. Nonetheless, federal courts have a responsibility to ensure
that plaintiffs have standing. Friends of the Earth, 528 U.S. at 180.
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was akin to that in Coleman. Id. at 803. Specifically, the state initiative
would “completely nullify any vote by the Legislature, now or in the
future, purporting to adopt a redistricting plan.” Id. (quotation marks
omitted). That injury is synonymous with Plaintiffs’ injury here. Sec-
tion 13 nullified Plaintiffs’ vote. Were it not for Section 13, Plaintiffs’
vote would have been sufficient to pass the concurrent resolutions.
This is the type of injury that the Supreme Court recognized in Coleman
and Arizona State Legislature.
4
Finally, it is not immediately clear that this is a live dispute. As
noted above, the Kansas Legislature passed the two concurrent reso-
lutions at issue in 2023. Doc. 1 at ¶ 1. That legislative session ended
before the issue presented in Plaintiffs’ complaint was resolved.
Federal courts may only adjudicate actual controversies. U.S.
Const. art. III, § 2, cl. 1. Courts may not decide questions that do not
affect the rights of the parties or “give opinions advising what the law
would be upon a hypothetical state of facts.” Chafin v. Chafin, 568 U.S.
165, 172 (2013). Because this requirement persists through all stages of
federal judicial proceedings, “it is not enough that a dispute was very
much alive when suit was filed . . . .” Lewis v. Cont’l Bank Corp., 494 U.S.
472, 477–78 (1990). “[A] suit becomes moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” Chafin, 568 U.S. at 172.
There are exceptions to that rule. One arises when the dispute is
“capable of repetition, yet evad[es] review.” Kingdomware Techs., Inc. v.
United States, 579 U.S. 162, 170 (2016). It applies where the challenged
action is in its duration too short to be fully litigated prior to cessation
or expiration and there is a reasonable expectation that the same com-
plaining party will be subject to the same action again. Kingdomware
Techs., 579 U.S. at 170. “In deciding whether a case is moot, the crucial
question is whether granting a present determination of the issues of-
fered [ ] will have some effect in the real world.” Rio Grande Found. v.
Oliver, 57 F.4th 1147, 1165 (10th Cir. 2023) (quotation marks omitted).
This case qualifies as an exception. Cf. Trombetta v. State of Fla., 353
F. Supp. 575, 576 (M.D. Fla. 1973) (finding that a ratification challenge
under Article V fit under the exception because declaratory judgment
was necessary to define the rights of the parties). The concurrent res-
olutions at issue are not amenable to quick litigation before a legislative
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session is finished—in Kansas the legislative session is typically only
from January through April. Thus, this controversy is likely to emerge
again given the quick cyclical nature of legislative sessions in Kansas.
Cf. Rio Grande Found., 57 F.4th at 1166 (noting that challenges to elec-
tion laws readily meet the exception requirement because “injuries
from such laws are capable of repetition every election cycle yet the
short time frame of an election cycle is usually insufficient for litigation
in federal court”). And a determination of the issue would have real
effect in the real world. See id. (finding that a dispute was not moot
because “determining the law’s constitutionality would have a real ef-
fect on [the plaintiff]”).
B
Plaintiffs challenge the constitutionality of Article II, Section 13 of
the Kansas Constitution. They argue that that Section violates the ap-
plication clause of Article V of the United States Constitution because
it purports to restrict how the Kansas Legislature may exercise the ap-
plication power.
1
There appears to be no controlling precedent interpreting the ap-
plication clause under Article V of the Constitution. But there is con-
trolling and persuasive precedent interpreting the identical language of
Article V’s ratification clause. That matters because district courts are
bound by the reasoning of the Supreme Court almost as firmly as by
its holdings. See United States v. Guillen, 995 F.3d 1095, 1114 (10th Cir.
2021) (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996))
(“When an opinion issues for the Court, it is not only the result but
also those portions of the opinion necessary to that result by which we
are bound.”); United States v. Bd. of Cty. Comm’rs of Otero, 843 F.3d 1208,
1214 (10th Cir. 2016) (“We have no authority to reject the reasoning
behind a Supreme Court holding.”); United States v. Duvall, 740 F.3d
604, 609 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“[T]he reasoning
of a Supreme Court case also binds lower courts.”) (emphasis in orig-
inal). And importantly, neither Defendants nor the proposed interve-
nor defendants identify any caselaw to the contrary.
The Supreme Court examined state legislatures’ power to ratify
amendments under Article V in Hawke v. Smith, 253 U.S. 221 (1920).
In that case, the Court analyzed a provision of the Ohio Constitution
that attempted to limit the ratification power by taking it from the
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14
legislature and giving it to a popular vote by way of a referendum. It
stated that “[t]he people . . . reserve to themselves the legislative power
of the referendum on the action of the General Assembly ratifying any
proposed amendment to the Constitution of the United States.”
Hawke, 253 U.S. at 225. The Court struck down the Ohio constitu-
tional provision, holding that “ratification by a state of a constitutional
amendment is not an act of legislation within the proper sense of the
word,” and that “the power to ratify a proposed amendment to the
federal Constitution has its source in the federal Constitution.” Id. at
230. The Court noted that “[t]he act of ratification by the state derives
its authority from the federal Constitution” and, therefore, Ohio did
not have the authority to impose a referendum requirement on its leg-
islature’s ratifications of amendments. Id. at 230, 231.
The Court applied Hawke in Leser v. Garnett, 258 U.S. 130 (1922).
In Leser, two women registered as qualified voters in Baltimore. Leser,
258 U.S. at 135. The plaintiff filed suit to have the women’s names
stricken from the voter roll on account of the Maryland Constitution,
which denied women the franchise. Id. The Nineteenth Amendment
and its guarantee to women of their right to vote had been ratified,
although not by Maryland. The plaintiffs argued that the Amendment
was not part of the federal Constitution because several of the states
that ratified it had provisions in their constitutions that, according to
the plaintiffs, rendered those states’ ratifications inoperative. Leser, 258
U.S. at 136–37. Applying Hawke and Article V’s text, the Supreme
Court rejected the plaintiff’s argument, noting that “the function of a
state Legislature in ratifying a proposed amendment to the federal
Constitution, like the function of Congress in proposing the amend-
ment, is a federal function derived from the federal Constitution; and
it transcends any limitations sought to be imposed by the people of a
state.” Id. at 137. In other words, any constraints imposed by the states’
constitutions affecting the Article V power were ineffective.
Although Hawke and Leser dealt with the ratification clause rather
than the application clause, the text of Article V suggests that their
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logic applies to state legislatures’ applications as well as ratifications.6
Article V uses the same term, “Legislatures,” in both the ratification
clause and in the application clause. And both clauses are laid out as
parallels. This context and structure suggest that the clauses should be
read harmoniously; there is no textual basis to reach a different con-
clusion. See Antonin Scalia & Bryan A. Gardner, Reading Law: The Inter-
pretation of Legal Texts 147 (2012) (“A word or phrase is presumed to
bear the same meaning throughout a text . . . .”). Indeed, it makes no
logical sense that a state legislature’s power to ratify constitutional
amendments may not by infringed by state constitutional provisions
seeking to limit their authority (as Hawke and Leser recognized), but
their power to apply for a constitutional convention may be.
Circuit courts in other jurisdictions have applied Hawke and Leser
to other Article V cases that were not limited to the ratification clause.
In Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999), the Eighth Circuit
analyzed an amendment to the Nebraska Constitution that instructed
“each of Nebraska’s representatives in Congress to use all of his or her
delegated powers to pass the specified term limits amendment.” Miller,
169 F.3d at 1122 (quotation marks omitted). The amendment also in-
structed Nebraska legislators “to apply to Congress for a national con-
vention.” Id. (citation omitted). Relying on Hawke and Leser, the Eighth
Circuit struck down the Nebraska constitutional provision. Id. at 1124
(“We therefore conclude that Nebraska’s Article XVIII is an unconsti-
tutional attempt effectively to remove the Article V power from legis-
lators and to place it in the hands of the people, thus substituting pop-
ular will for the will of the independent deliberative assemblage envi-
sioned by the framers of the Constitution.”) (citation and quotation
marks omitted). The court found that the Nebraska provision under-
mined representative government by permitting the people to directly
control the state legislature’s Article V power. Id.
The Eighth Circuit applied Miller in a similar challenge to the Mis-
souri Constitution. In Gralike v. Cook, a Missouri Constitution
6 This proposition has been recognized in the academic literature for decades.
See Jonathan L. Walcoff, The Unconstitutionality of Voter Initiative Applications for
Federal Constitutional Conventions, 85 COLUM. L. REV. 1525, 1537 (1985)
(“While Hawke and Leser were ratification clause cases, their analysis applies
equally to the proposal clause.”); Robert G. Natelson, Proposing Constitutional
Amendments by Convention: Rules Governing the Process, 78 TENN. L. REV. 693,
710 (2011) (concluding the same).
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16
provision “order[ed] members of Missouri’s congressional delegation
to use their authority to amend the United States Constitution.” Gralike
v. Cook, 191 F.3d 911, 915 (8th Cir. 1999), aff’d, 531 U.S. 510 (2001).
Again relying on Hawke and Leser, the court struck down the provision.
Id. at 925–26. The court noted that “Supreme Court precedent sup-
ports the conclusion that the people have a limited, third-party role in
the amendment process.” Id. at 924. Because the Missouri Constitution
sought to limit the state legislature’s power to amend the federal Con-
stitution, it ran afoul of Article V. See id. at 924–25 (“Article V envi-
sions legislatures acting as freely deliberative bodies in the amendment
process and resists any attempt by the people of a state to restrict the
legislatures’ actions.”); see also Cook v. Gralike, 531 U.S. 510, 518 (2001)
(affirming and noting that the circuit court’s decision was “consistent
with the views of other courts that have passed on similar voter initia-
tives”).
District courts are also in accord. In two cases, Trombetta v. State of
Fla., 353 F. Supp. 575 (M.D. Fla. 1973), and Dyer v. Blair, 390 F. Supp.
1291 (N.D. Ill. 1975), district courts contended with limits on state
legislatures’ ratification power. In one, the Florida Constitution pro-
vided that “[t]he legislature shall not take action on any proposed
amendment to the constitution of the United States unless a majority
of the members thereof have been elected after the proposed amend-
ment has been submitted for ratification.” Trombetta, 353 F. Supp. at
575. In the other, the Illinois Constitution provided that “[t]he affirm-
ative vote of three-fifths of the members elected to each house of the
General Assembly shall be required to request Congress to call a Fed-
eral Constitutional Convention, to ratify a proposed amendment to the
Constitution of the United States, or to call a State Convention to ratify
a proposed amendment to the Constitution of the United States.” Dyer,
390 F. Supp. at 1295. Both provisions were precluded by Article V,
with each of the district courts relying on Hawke and Leser to hold that
states may not impose any limits on their legislatures’ Article V powers.
See Trombetta, 353 F. Supp. at 578; Dyer, 390 F. Supp. at 1308 (“[A]rticle
V delegates to the state legislatures—or the state conventions depend-
ing upon the mode of ratification selected by Congress—the power to
determine their own voting requirements. The decisions of the Su-
preme Court, as well as the text of article V, illuminate the critical point
that the delegation is not to the states but rather to the designated rat-
ifying bodies.”).
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League of Women Voters of Maine v. Gwadosky, 966 F. Supp. 52 (D.
Me. 1997), is also instructive. In that case, the District of Maine looked
at a Maine statute that directed the Maine Legislature and Governor to
enact a term-limits amendment to the federal Constitution. League of
Women Voters of Maine, 966 F. Supp. at 54. The district court struck
down the statute, noting that “[i]t is not within the province of the
citizens of a state to propose or ratify amendments to the Constitution.”
Id. at 56 (emphasis added). Commenting on Hawke and Leser, the court
noted:
Hawke and Leser would seem to indicate that the role
of the people as citizens of both the various states and
the United States in amending the Constitution is
strictly limited to electing their state and federal offi-
cials. It appears, from these two decisions, to be within
the exclusive province of the U.S. Congress and the
state legislatures to deliberate and act upon potential
amendments to the Constitution, unencumbered by
any influences from the people who elected their law-
makers.
Id. at 57. Because a citizen’s role is “outside the Article V process,” id.
at 59, the court found the Maine statute unconstitutional. Id. at 63. The
statute violated Article V because it sought to prevent Maine legislators
from acting “in the deliberative and independent manner required by
Article V of the Constitution.” League of Women Voters of Maine, 966 F.
Supp. at 63.
Several state supreme courts have held the same. At least six state
supreme courts have concluded that Article V does not tolerate any
encroachment on state legislature’s Article V power. See generally Opin-
ion of the Justices to the Senate, 366 N.E.2d 1226 (Mass. 1977); State ex rel.
Harper v. Waltermire, 691 P.2d 826 (Mont. 1984); Am. Fed’n of Lab. v.
Eu, 686 P.2d 609 (Cal. 1984) (en banc); Donovan v. Priest, 931 S.W.2d
119 (Ark. 1996); In re Initiative Petition No. 364, 930 P.2d 186 (Okla.
1996); Morrissey v. State, 951 P.2d 911 (Colo. 1998). Of those, two deci-
sions dealt specifically with the application clause. See Waltermire, 691
P.2d 826; Eu, 686 P.2d 609.
In Waltermire, a Montana initiative directed the Montana state leg-
islature to apply for a constitutional convention. The Montana Su-
preme Court struck down Montana’s initiative by relying on Hawke and
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18
Leser. Its commentary on Hawke and the power of state legislatures
acting pursuant to Article V is illuminating:
The discussion in Hawke of legislatures in the context
of the amendment ratification clause of Article V is
equally applicable to the application clause. There is no
reason that the framers would have ascribed different
meanings to the two instances in which they used the
word “legislatures” within the same sentence of Article
V. A legislature making an application to Congress for
a constitutional convention under Article V must be a
freely deliberating representative body . . . . [W]e find
that whenever a state legislature acts to amend the
United States Constitution under Article V powers, the
body must be a deliberative representative assemblage
acting in the absence of any external restrictions or lim-
itations.
Waltermire, 691 P.2d at 830.
The California Supreme Court faced a similar issue in Eu. In that
case, a California initiative compelled the California Legislature to ap-
ply to Congress for a constitutional convention to discuss a balanced-
budget amendment. Eu, 686 P.2d at 611. The California Supreme
Court first decided that the dispute was justiciable. Id. at 617. It then
proceeded to the merits, holding that “a state may not, by initiative or
otherwise, compel its legislators to apply for a constitutional conven-
tion, or to refrain from such action. Under Article V, the legislators
must be free to vote their own considered judgment, being responsible
to their constituents through the electoral process.” Id. at 622. The
state Supreme Court explained as follows:
We have concluded that the initiative, to the extent that
it applies for a constitutional convention or requires
the Legislature to do so, does not conform to article V
of the United States Constitution. Article V provides
for applications by the “Legislatures of two-thirds of
the several States,” not by the people through the ini-
tiative; it envisions legislators free to vote their best
judgment, responsible to their constituents through the
electoral process, not puppet legislators coerced or
compelled by loss of salary or otherwise to vote in fa-
vor of a proposal they may believe unwise.
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19
Id. at 613.
2
Section 13 offends Article V just like each of the similar provisions
discussed above. It purports to restrict the Kansas Legislature’s appli-
cation power by requiring the assent of a supermajority of legislators
to apply for a constitutional convention. That effort fails because the
application power is conferred not by state law, but by Article V itself.
Hawke, 253 U.S. at 230; Leser, 258 U.S. at 137. And, as the Eighth Cir-
cuit recognized in Gralike, “Article V envisions legislatures acting as
freely deliberative bodies in the amendment process and resists any
attempt by the people of a state to restrict the legislatures’ actions.”
Gralike v. Cook, 191 F.3d 911, 924–25 (8th Cir. 1999), aff’d, 531 U.S.
510 (2001). The only role the citizenry has in exercising Article V
power is to elect its representatives to the legislature, and when the
framers of the Constitution “intended that direct action by the people
should be had they were no less accurate in the use of apt phraseology
to carry out such purpose.” Hawke, 253 U.S. at 228. Once that is done,
Article V power may only be exercised by the representative legislative
body. The legislature may choose to apply or they may not. And they
may insist on internal limits as to how, and under what circumstances,
they will act. But any state attempt to limit or inhibit the legislature’s
prerogative—whether by way of directing them how to vote, directing
what action to take, or establishing a threshold for what constitutes
legislative assent—trenches upon the federal power the framers con-
ferred upon the state legislatures. Id. at 230; Leser, 258 U.S. at 137.
Defendants do not argue to the contrary. Indeed, they have failed
to identify a single case where any similar effort to restrict Article V
power has succeeded. That is not surprising, as none of the authorities
have done so either.
Instead, Defendants offer three counterarguments in response.
Doc. 38-1 at 10. None are persuasive.
Defendants first argue that Section 13 is constitutional because it
“still leaves the power to apply for a convention solely in the hands of
the state legislature.” Doc. 38-1 at 10. Specifically, Defendants argue
that the Kansas Constitution “simply provides the threshold of votes
necessary [to] apply for a convention of states.” Id. at 11. But Section
13 does not leave all the power solely in the hands of the Kansas Leg-
islature; it purports to permit the exercise of that power only if a
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20
supermajority supports it. That is the Article V problem. Article V per-
mits no limit on state legislatures’ power to ratify amendments or apply
for conventions. See Hawke, 253 U.S. at 230; Leser, 258 U.S. at 137.
Next, Defendants contend that history and tradition are on their
side. Doc. 38-1 at 13. In general, they argue that when “history and
tradition [are] appropriately examined it is clear that the intent of Arti-
cle V was not to limit how states choose to exercise this power.” Id.
According to Defendants, the colonies employed several methods for
selecting delegates to conventions that predated the Constitution and,
in turn, this does not “support the idea that Article V limits the states’
method of application.” Id. But there are reasons to doubt Defendants’
gloss on the historical record. As the Eighth Circuit has noted, the
framers disfavored the right of the people to instruct their legislators
how to vote. Miller, 169 F.3d at 1124. In 1789, the House of Repre-
sentatives rejected a proposed “right to instruct Representatives.” Id.
This occurred even though several colonies had such a right in their
constitutions. See Akhil Reed Amar, Philadelphia Revisited: Amending the
Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1059 (1988) (not-
ing that North Carolina, Pennsylvania, Massachusetts, New Hamp-
shire, and New York guaranteed the right to instruct legislators). The
framers considered that the right to instruct legislators would tend to
“swallow up [the] scheme of representative politics.” Amar, Philadelphia
Revisited at 1059. Thus, Article V expressly conferred power not to the
population generally, but to the “Legislature.” But even if the historical
record favored Defendants, it would not matter because Hawke and
Leser foreclose the issue. See Schell v. Chief Justice & Justices of the Okla.
Supreme Court, 11 F.4th 1178, 1191 (10th Cir. 2021) (noting that courts
are “bound by Supreme Court dicta almost as firmly as by the Court’s
outright holdings”) (alterations and quotation marks omitted).
Defendants note that “[i]f Hawke is held to support federal control
over state legislatures when they apply for a constitutional convention,
then it may be time to overturn Hawke.” Doc. 38-1 at 18 n.6. That
contention fails for at least two reasons. One is because Article V of
the Constitution is the source of the ratification and application power.
That power does not derive from state law. Hawke merely recognized
that this power conferred by Article V cannot be enhanced, restricted,
or commandeered by anyone but state legislatures. The other is be-
cause this is the wrong forum for that argument. Under our system of
vertical stare decisis, federal district courts have no power to overrule,
second guess, or undermine the rules established by higher courts. See
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21
Hutto v. Davis, 454 U.S. 370, 375 (1982) (“[U]nless we wish anarchy to
prevail within the federal judicial system, a precedent of this Court
must be followed by the lower federal courts no matter how misguided
the judges of those courts may think it to be.”); United States v. Guillen,
995 F.3d 1095, 1114 (10th Cir. 2021) (noting that “[v]ertical stare de-
cisis is absolute”); see also Amy Coney Barrett, Precedent and Jurisprudential
Disagreement, 91 TEX. L. REV. 1711, 1712 (2013) (“Vertical stare decisis
is an inflexible rule that admits of no exception.”); Evan H. Caminker,
Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV.
817, 818 (1994) (“[L]ongstanding doctrine dictates that a court is always
bound to follow a precedent established by a court ‘superior’ to it.”)
(emphasis in original). Only the Supreme Court of the United States
may overrule one of its decisions. See Mallory v. Norfolk S. Ry. Co., 600
U.S. 122, 137 (2023) (quoting Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989)) (noting that lower courts must
leave to the Supreme Court “the prerogative of overruling its own de-
cisions”).
Finally, Defendants contend that Hawke is inapposite because ap-
plication for a convention under Article V is a “legislative function.”
Doc. 38-1 at 16. They argue that while ratification is “a binary, up-or-
down, consent-or-no choice,” application is “more like an ordinary
lawmaking function, where the legislature determines in the first in-
stance the scope, language, and purpose of the resolution.” Doc. 38-1
at 17. Thus, the argument goes, the Kansas Legislature can be limited
by Section 13 because “state legislatures ‘are bound by the provisions
of the very documents that give them life.’” Id. at 18 (quoting Moore v.
Harper, 600 U.S. 1, 27 (2023)).
This argument is unconvincing. As noted, the text of Article V fails
to support treating the ratification clause differently from the applica-
tion clause. Under Hawke and its progeny, the power extended by Ar-
ticle V cannot be restricted by state efforts. In fact, if state legislatures’
power to ratify is not legislative, as Hawke held, then a fortiori their
power to apply for conventions is not legislative either. In essence, leg-
islation is a two-step process: writing the text of the law and assenting
to it. Ratifying an amendment is one step removed. It consists only of
assenting to the text of the law but not of writing that text. Applying
for a convention is yet another step removed. There is no writing of
any law or assenting to it. A vote to apply for a convention is simply a
vote to convene. See Walcoff, 85 COLUM. L. REV. 1525, 1537–38 (1985)
(explaining as much in detail). This analysis is fully consistent with the
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structure of Article V. Defendants identify neither binding nor persua-
sive authority supporting the position that state legislatures’ application
power is a legislative function.
And Moore v. Harper, cited only in passing, is inapposite. Contra
Doc. 38-1 at 18. That case concerned the power of state legislatures to
draw congressional districts under the Elections Clause. The Court
held that the Elections Clause “does not insulate state legislatures from
the ordinary exercise of state judicial review.” Moore, 600 U.S. at 22. In
dicta, the Court noted that “when legislatures make laws, they are bound
by the provisions of the very documents that give them life.” Id. at 27
(emphasis added). As noted above, there is no reason to conclude, and
Defendants have made no compelling argument suggesting, that state
legislatures are making laws when they apply for a constitutional con-
vention. Instead, the cases and commentators conclude just the oppo-
site.
III
For the foregoing reasons, Plaintiffs’ Motion for Judgment on the
Pleadings, Doc. 33, is GRANTED, Defendants’ Motion for Judgment
on the Pleadings, Doc. 35, is DENIED, and the proposed intervenor
defendants’ objection, Doc. 29, is OVERRULED.
It is so ordered.
Date: November 5, 2025 s/ Toby Crouse
Toby Crouse
United States District Judge
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