Case 2:14-cv-02518-DDC-TJJ Document 48 Filed 11/18/14 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN,
and KERRY WILKS, Ph.D., and DONNA
DITRANI,
Plaintiffs,
v.

)
)
)
)
)
)
ROBERT MOSER, M.D., in his official capacity )
as Secretary of the Kansas Department of
)
Health and Environment,
)
DOUGLAS A. HAMILTON, in his official
)
Capacity as Clerk of the District Court for the 7th )
Judicial District (Douglas county), and
)
BERNIE LUMBRERAS, in her official capacity
)
as Clerk of the District Court for the 18th
)
Judicial District (Sedgwick County),
)
Defendants.
)
_________________________________________ )

Case No. 14-CV-2518-DDC-TJJ

ANSWER OF DEFENDANT ROBERT MOSER M.D.

Defendant Robert Moser, M.D., Secretary of the Kansas Department of Health and
Environment, responds to and answers the Complaint as follows:
1. Every allegation of the Complaint that is not hereafter expressly admitted is denied.
2. This Defendant admits the allegations of paragraphs 11, 12, 23, 24, 25, 26, 44, 45, 54,
and 55 of the Complaint.
3. This Defendant denies the allegations of paragraphs 2, 13, 22, 32, 33, 35, 46, 47, 48, 51,
52, 56, 57, 60, 61, 65, 66, 70, 72, 75, 76, 77, 79, 80, and 81 of the Complaint.
4. This Defendant is without sufficient knowledge to admit or deny the allegations of
paragraphs 1, 3, 4, 5, 6, 7, 9, 10, 14, 15, 16, 17, 18, 19, 20, 21, 27, 28, 29, 30, 31, 34, 49,
50, 58, 59, 62, 67, 68, 69, 71, and 73 of the Complaint, and the same are therefore denied.
5. In response to paragraph 8 of the Complaint, Defendant Moser admits that he is now the

Case 2:14-cv-02518-DDC-TJJ Document 48 Filed 11/18/14 Page 2 of 5

Secretary of the Kansas Department of Health and Environment but denies that he will
continue to hold that position throughout the pendency of this lawsuit due to his
upcoming resignation from the post of Secretary. He denies that KDHE is presently
involved in furnishing forms that prohibit same sex couples from marrying, and
affirmatively alleges that his agency instead distributes gender neutral forms that can be
used for same-sex marriages. He denies that he acts to ensure compliance with . . .
relevant Kansas laws, including those that currently exclude same-sex couples from
marriage, and asserts instead that the Kansas judiciary, over which his agency has no
power of supervision or control, monitors compliance with those laws.
6. No response is required to paragraphs 36 through 42 of the Complaint because there are
no such paragraphs.
7. In response to paragraph 43 of the Complaint this Defendant incorporates by reference
his response to paragraphs 1 through 42 of the Complaint.
8.

In response to paragraph 53 of the Complaint this Defendant incorporates by reference

his response to paragraphs 1 through 52 of the Complaint.

9. In response to paragraph 78 of the Complaint this Defendant incorporates by reference

his response to paragraphs 1 through 77 of the Complaint.
10. This Defendant denies that the Secretary of the Kansas Department of Health and
Environment is engaged in the violation of any right guaranteed to Plaintiffs by any
federal law, whether a statutory law or a constitutional provision; denies that any of the
harms asserted in the Complaint result from the official actions of the Secretary of the
Kansas Department of Health and Environment, and denies that the harms asserted in the
2

Case 2:14-cv-02518-DDC-TJJ Document 48 Filed 11/18/14 Page 3 of 5

Complaint will be redressed or alleviated by the relief requested. Neither the Secretary of
the Kansas Department of Health and Environment nor the agency he heads is
responsible for the general attitude of society toward Plaintiffs or other persons who
share any relevant (or irrelevant) attribute with them. No lawsuit directed at public
officials will change social attitudes or public approval or disapproval of any private
behavior. The harms alleged by Plaintiffs are the direct result of the social attitudes of
private persons, not the result of any actions taken under color of state law.
11. The Complaint fails to state a claim on which relief can be granted against the Secretary
of the Kansas Department of Health and Environment.
12. The Court lacks subject matter jurisdiction over any claim asserted against this Defendant
by reason of the Eleventh Amendment to the United States Constitution, by reason of the
absence of Article III standing, and by reason of the absence of prudential standing.
13. Any relief against this Defendant is barred by the statute of limitations, the doctrines of
laches and mootness, failure to join necessary parties under F.R.C.P. 19, estoppel,
illegality, and by Plaintiffs knowing and voluntary waiver of the right to marry under the
laws of another jurisdiction that has no public policy against same-sex marriage.
14. None of the Plaintiffs has been barred from entering into a legally enforceable marriage
by reason of any action of the Secretary of the Kansas Department of Health and
Environment. Because Kansas law does not recognize the legality of same-sex marriages,
whether they have been formally licensed or not, and because Plaintiffs are admittedly
barred from obtaining the marriage licenses they sought by reason of the orders of the
Chief Judges of the Seventh and Eighteenth Judicial Districts acting without any advice
or supervision by the Secretary of the Kansas Department of Health and Environment, no
3

Case 2:14-cv-02518-DDC-TJJ Document 48 Filed 11/18/14 Page 4 of 5

harm of the type alleged by Plaintiffs is traceable to any action of the Secretary of the
Kansas Department of Health and Environment.
15. None of the Plaintiffs has alleged the occurrence of the conditions precedent to
involvement of the Secretary of the Kansas Department of Health and Environment in
their dispute. None of the Plaintiffs has obtained a Kansas marriage license, none of the
Plaintiffs has returned a completed certificate of marriage to a Kansas court clerk, and no
Kansas court clerk has reported the return of any marriage certificate naming any of the
Plaintiffs to the Secretary of the Kansas Department of Health and Environment or
anyone acting under his supervision.
16. Because Kansas law does not recognize the legal enforceability of a marriage between
persons of the same sex for reasons of public policy, it is not possible to afford effective
relief to Plaintiffs without naming as defendants the persons who would enforce the
public policy prohibition. Any such persons would qualify as required parties under
F.R.C.P. 19. Failure to join these additional parties exposes the State of Kansas and all of
its employees involved in the enforcement of marriage laws to the substantial risk of
incurring inconsistent obligations. Since no such parties have been named, and apparently
cannot be named as parties consistent with the Eleventh Amendment and principles of
judicial immunity, this lawsuit should be dismissed pursuant to F.R.C.P. 19(b).
Wherefore, Defendant Robert Moser M.D. prays that plaintiffs take nothing by their
Complaint and that the same should be dismissed with prejudice, with costs assessed against
Plaintiffs.

Case 2:14-cv-02518-DDC-TJJ Document 48 Filed 11/18/14 Page 5 of 5

Respectfully submitted,
OFFICE OF THE ATTORNEY GENERAL
DEREK SCHMIDT

s/Steve R. Fabert
Steve R. Fabert, #10355
Assistant Attorney General
Office of the Attorney General
120 S.W. 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420
Fax: (785) 296-6296
Email: steve.fabert@ag.ks.gov
Attorney for Defendant Moser

CERTIFICATE OF SERVICE
This is to certify that on this 18th day of November, 2014, a true and correct copy of the
above and foregoing Answer was filed by electronic means via the Courts electronic filing
system which serves a copy upon Plaintiffs counsel of record, Stephen Douglas Bonney, ACLU
Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and Mark P. Johnson, Dentons
US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111, dbonney@aclukansas.org and
Mark.johnson@dentons.com and Joshua A. Block, American Civil Liberties Foundation, 125
Broad Street, 18th Floor, New York, NY 100004, jblock@aclu.org.
s/Steve R. Fabert
Steve R. Fabert
Attorney for Defendant Moser