14-3246 Appellants' Opening Brief

Appellate Case: 14-3246
Document: 01019377511
Date Filed: 01/28/2015
Page: 1
Case No. 14-3246

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
KAIL MARIE and MICHELLE L. BROWN, and KERRY WILKS, Ph.D and
DONNA DITRANI, Plaintiffs/Appellees,
v.
ROBERT MOSER, M.D. in his official capacity as Secretary of the Kansas
Department of Health and Environment and
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)
On Appeal from the United States District Court

For the District of Kansas
The Honorable Daniel D. Crabtree
United States District Judge
Case No. 14-CV-02518-DDC/TJJ
JOINT OPENING BRIEF OF APPELLANTS

OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT
By: s/ Steve R. Fabert
Steve R. Fabert, KS Sup. Ct. No. 10355
Assistant Attorney General
120 SW 10th, 2nd Floor
Topeka, Kansas 66612
Tel: 785-368-8420
E-mail: steve.fabert@ag.ks.gov
Attorney for Defendant/Appellant Moser
ORAL ARGUMENT IS REQUESTED
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TABLE OF CONTENTS
PRIOR OR RELATED APPEALS ........................................................................ 1
JURISDICTIONAL STATEMENT ....................................................................... 1
STATEMENT OF THE ISSUES............................................................................2
STATEMENT OF THE CASE ...............................................................................3
STATEMENT OF FACTS ......................................................................................4
ARGUMENT AND AUTHORITIES AND SUMMARY OF ARGUMENT .....8
STANDARD OF REVIEW .....................................................................................9
1. UNDER THE RULE OF DISTRICT COURT OF APPEALS V.
FELDMAN, THE DISTRICT COURT DID NOT HAVE
JURISDICTION TO REVIEW AND INTERFERE WITH THE
PENDING ORDER OF THE KANSAS SUPREME COURT OR THE
ORDERS OF THE CHIEF JUDGES OF THE SEVENTH AND
EIGHTEENTH JUDICIAL DISTRICTS OF KANSAS .........................10
2. GIVEN THE CLEAR PROHIBITION AGAINST JUDICIAL
OFFICERS ACTING IN THEIR JUDICIAL OFFICERS IN THEIR
JUDICIAL CAPACITIES IN 42 U.S.C. 1983, THE DISTRICT
COURT ERRED IN GRANTING THE PRELIMINARY
INJUNCTION AGAINST THE CLERKS, JUDICIAL OFFICERS,
ACTING ON ORDERS OF THEIR CHILEF JUDGES WHO HAD
MADE LEGAL DETERMINATIONS THAT SAME-SEX MARRIAGE
APPLICANTS WERE NOT LEGALLY ENTITLED TO A LICENSE
UNDER STATE LAW ................................................................................16
3. INJUNCTIVE RELIEF AGAINST SECRETARY MOSER WAS
PLAINLY IMPROPER GIVEN PLAINTIFFS LACK OF STANDING
TO SEEK SUCH RELIEF UNDER PRIOR DECISIONS OF THIS
COURT AND THE FACT THAT SECRETARY MOSER IS NOT A
PROPER DEFENDANT UNDER THIS COURTS ELEVENTH
AMENDMENT JURISPRUDENCE .........................................................29
CONCLUSION.......................................................................................................30
STATEMENT REGARDING ORAL ARGUMENT .........................................32
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CERTIFICATE OF COMPLIANCE ..................................................................33

CERTIFICATE OF PRIVACY REDACTIONS ................................................33
CERTIFICATE OF DIGITAL SUBMISSION...................................................33
CERTIFICATE OF SCANNING .........................................................................33
CERTIFICATE OF SERVICE ............................................................................34
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TABLE OF AUTHORITIES
CASES
Page
American Tradition Institute v. Colorado
876 F. Supp. 2d 1222, 1238-39 (D. Colo. 2012) ............................................... 29
Bishop v. Oklahoma
333 Fed. Appx. 361, 2009 WL 1566802 (10th Cir. 2009) ................................. 27
Bishop v. Smith
760 F.3d 1070 (10th Cir. 2014) .......................................................................... 27
Bishop v. U.S. ex rel. Holder
962 F. Supp. 2d 1252, 1280, n.27 (N.D. Okla. 2014) ....................................... 28
Buchheit v. Green
705 F.3d 1157 (10th Cir. 2012) ......................................................................... 17
Coleman v. Farnsworth
No. 03-3296, 90 Fed. Appx. 313, 317-18, 2004 WL 339590 (10th Cir. Feb.
24, 2004) (unpublished) .....................................................................................25
Cook v. City of Topeka
232 Kan. 334, 654 P.2d 953, 957 (1982)........................................................... 26
Chamber of Commerce of U.S. v. Edmondson
594 F.3d 742, 764 (10th Cir.2010) ..................................................................... 9
D.C. Court of Appeals v. Feldman
460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983) .................................. 16
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DeBoer v. Snyder
No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014) .................................. 4
Ex parte Young
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ............................................. 14
Exxon Mobil Corp. v. Saudi Basic Indus. Corp.
544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454, (2005) ............................... 14
Flood v. ClearOne Commc'ns, Inc.,
618 F.3d 1110, 1111 (10th Cir.2010) ................................................................ 9
Forrester v. White
484 U.S. 219, 229, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) ............................ 21
In re Kline
472 B.R. 98, 105 (B.A.P. 10th Cir. 2012) aff'd, 514 F. App'x 810, 2013 WL
1668342 (10th Cir. 2013) ...................................................................................15
Juidice v. Vail
430 U.S. 327, 334-35, 97 S. Ct. 1211, 1217, 51 L. Ed. 2d 376 (1977) ............. 13
Kitchen v. Herbert
755 F.3d 1193 (10th Cir. 2014) ......................................................................... 3
Knox v. Bland
632 F.3d 1290 (10th Cir. 2011) .......................................................................... 17
Landrith v. Gariglietti .................................................................................................14
No. 12-3048, 505 Fed. Appx. 701, 702-03, 2012 WL 6062668 (10th Cir.
Dec. 7, 2012) (unpublished) .............................................................................. 17
Lundahl v. Zimmer
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296 F.3d 936, 939 (10th Cir. 2002), cert. denied, 538 U.S. 983 (2003) ............ 25
Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell
363 F.3d 1072, 1075 (10th Cir. 2004) ................................................................ 15
Mounkes v. Conklin
922 F. Supp. 1501, 1510 (D. Kan. 1996) .......................................................... 15
Peterson v. Martinez
707 F.3d 1197 (10th Cir. 2013) .......................................................................... 29
Planned Parenthood of Kansas & Mid-Missouri v. Moser
747 F.3d 814 (10th Cir. 2014) ............................................................................ 9
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.
506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) .................................. 15
Pulliam v. Allen
466 U.S. 522 (1984)...........................................................................................17
State ex. rel. Schmidt v. Moriarty
No. 112,590 .......................................................................................................3
Stump v. Sparkman
435 U.S. 349, 362, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) ............................ 20
Taylor v. Taintor
16 Wall. 366-370, 21 L.Ed. 287-290 ................................................................. 14
United States v. Windsor
__U.S.__, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013) ...................................... 10
Valdez v. City and County of Denver
878 F.2d 1285, 1287-88 (10th Cir. 1989) ........................................................... 18
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Whitesel v. Sengenberger
222 F.3d 861, 867 (10th Cir. 2000) .................................................................... 18
CONSTITUTIONAL PROVISIONS
Kan. Const. ...............................................................................................................18
STATUTES
Federal
28 U.S.C. 1292(a)(1) ...............................................................................................7
42 U.S.C. 1983 ........................................................................................................3
Federal Courts Improvement Act, P.L. 304-17, 309, 110 Stat. 3847 14
State
K.S.A. 20-101 ..............................................................................................................18
K.S.A. 20-318 ..............................................................................................................24
K.S.A. 20-319 ..............................................................................................................24
K.S.A. 20-329 ..............................................................................................................24
K.S.A. 20-342 ..............................................................................................................24
K.S.A. 20-343 ..............................................................................................................30
K.S.A. 20-345 ..............................................................................................................30
K.S.A. 23-2505 ............................................................................................................19
K.S.A. 75-5601 ............................................................................................................29
K.S.A. 75-6104 ............................................................................................................26
Kansas Supreme Court Rules
Kansas Supreme Court Rule 107 ................................................................................. 24
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Other Authorities
S. Rep. No. 104-366 .....................................................................................................14
vii
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PRIOR OR RELATED APPEALS

There are no prior or related appeals.
JURISDICTIONAL STATEMENT
The parties dispute whether the U.S. District Court for the District of Kansas
had jurisdiction to enter the preliminary injunction sought against the DefendantsAppellants, officials and in the case of the Clerks, judicial officers of the State of
Kansas.
The Complaint, seeking declaratory and injunctive relief, premised
jurisdiction generally on 42 U.S.C. 1983, seeking preliminary injunctive relief.

(Complt., Doc. 1, at 1, 18-19, Aplt. App. V. 1 at 15, 32-33). In the District Court,
the Defendants challenged the Courts jurisdiction, based upon Eleventh
Amendment immunity, lack of subject matter jurisdiction under the RookerFeldman doctrine to review decisions of state courts, including the Kansas
Supreme Court which had a temporary restraining order in place prohibiting
issuance of same-sex marriage licenses, as well as abstention doctrines, and the
bar to preliminary injunctive relief against judicial officers, the Clerks, under 42
U.S.C. 1983 as amended by the Federal Courts Improvement Act of 1996.
(Response by Defendant Moser, (Doc. 14), Aplt. App. V. 1 at 68-89), Response by
Defendants Hamilton and Lumbreras, (Doc. 15), Aplt. App. V. 1 at 90-104);
Exhibits in Support of Response (Doc. 23), Aplt. App. V. 1 at 125-260);
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Supplement to Response (Doc. 24), Aplt. App. V. 2, at 261-63); Transcript of

October 31, 2014 Hearing (Doc. 44), Aplt. App. V.2, at 302-359).
Notwithstanding the jurisdictional issues, the District Court granted the requested
preliminary injunction on November 4, 2014. (Memorandum and Order (Doc. 29),
Aplt. App. V. 2, at 264).
On November 5, 2014, Defendants-Appellants timely filed a notice of
appeal from the District Courts Memorandum and Opinion granting the
preliminary injunction sought. (Notice of Appeal (Doc. 30)). The District Courts
preliminary injunction is immediately appealable as per 28 U.S.C. 1292(a)(1).
STATEMENT OF THE ISSUES
1. Under the rule of District Court of Appeals v. Feldman, did the

District Court have jurisdiction to review and interfere with the
pending order of the Kansas Supreme Court or the orders of the Chief
Judges of the Seventh and Eighteenth Judicial Districts of Kansas?
2. Given the clear prohibition on preliminary injunctive relief against
judicial officers acting in their judicial capacities in 42 U.S.C. 1983,
did the District Court err in granting the requested injunction against
the Clerks, judicial officers, acting on orders of their Chief Judges
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who had made legal determinations that same-sex marriage applicants

were not legally entitled to a license under state law?
3. Was injunctive relief against Secretary Moser proper given Plaintiffs
lack of standing to seek such relief under prior decisions of this Court
and the fact that Secretary Moser is not a proper defendant under this
Courts Eleventh Amendment jurisprudence?
STATEMENT OF THE CASE
At issue in this appeal is a request for preliminary injunctive relief to compel
the two defendant state court clerks to issue marriage licenses to same-sex couples
in two of 105 Kansas counties. Suit was filed in the District Court approximately
one hour after the Chief Justice of the Kansas Supreme Court signed an order
requiring Kansas district courts to continue denying same-sex marriage
applications pending a decision by that Court on a petition for writ of mandamus
filed by the Kansas Attorney General against the sole judge who had issued an
order requiring court staff in his district to commence issuing same-sex marriage
licenses, State ex. rel. Schmidt v. Moriarty, No. 112,590. (Doc. 15-1, Aplt. App.
V.1 at 102-04).
District Judge Daniel Crabtree rejected jurisdictional defenses
raised by the Clerks and Secretary Moser and issued a preliminary injunction based
on his finding that Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. denied,
135 S. Ct. 265 (2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert.
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denied, 135 S. Ct. 271 (2014), would assure eventual victory for plaintiffs on the
merits. Following the issuance of Judge Crabtrees order, the Sixth Circuit Court of
Appeals issued its decision in DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990
(6th Cir. Nov. 6, 2014), disagreeing with the analysis employed in Kitchen v.
Herbert and Bishop v. Smith, supra. The United States Supreme Court has now
granted petitions for certiorari in the DeBoer case. No. 14-571, 83 USLW 3315,
2015 WL 213650 (U.S. Jan. 16, 2015).
STATEMENT OF FACTS
The original complaint was filed on October 10, 2014, shortly following the
issuance of a Kansas Supreme Court Order temporarily staying the issuance of
same-sex marriage licenses by Kansas courts. (Complt. (Doc. 1), Aplt. App. V.1 at
15, Kansas Supreme Court Order of October 10, 2014 (Doc. 15-1), Aplt. App. V.1
at 102-04). The Complaint alleges federal question jurisdiction arising from 42
U.S.C. 1983, premised upon alleged violations of Plaintiffs equal protection and
due process rights under the 14th Amendment. (Complt. (Doc. 1), 1, 3, and 11;
Aplt. App. V.1 at 15-16, 19). Plaintiff Marie alleges that she filled out an
application for a marriage license for herself and Plaintiff Brown at the Douglas
County District Court but issuance of the license was denied pursuant to an
Administrative Order of the Chief Judge of the Seventh Judicial District that
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directs the court clerk not to issue licenses to applicants of the same sex. (Complt.,
(Doc. 1), 16-17; Aplt. App. V.1, at 20) Plaintiffs Wilks and DiTrani allege that
they sought to obtain a marriage license from a deputy clerk at the Sedgwick
County District Court but were denied an application because they were a samesex couple. (Complt. (Doc. 1), 18; Aplt. App. V.1, at 20-21). Plaintiff Wilks
alleges that she returned the next day and spoke with Chief Judge Fleetwood of the
18th Judicial District, who informed her in substance that Kansas law does not
allow the issuance of marriage licenses to same-sex couples. (Complt. (Doc. 1), at
19; Aplt. App. V.1, at 21). Through persistence Plaintiff Wilks and DiTrani
finally obtained an application form but were advised by court staff that no license
would be issued until a court rules on the constitutionality of the Kansas
constitutional provision and related statutes [prohibiting same-sex marriage].
(Complt (Doc. 1), at 20-21; Aplt. App. V.1, at 7).
Before process was served on any of the Defendants, Plaintiffs filed a
motion for preliminary injunction (Doc. 3; Aplt. App. V.1, at 35). Defendants
responded to that motion (Docs. 14-15; ) which was set for hearing on October 31,
2014, before responsive pleadings were filed. (Doc. 21). No live testimony was
presented at the hearing. (Doc. 44; Aplt. App. V.2, at 302-59). Plaintiffs relied
exclusively on their affidavits. (Docs. 4-1-4-4, Aplt. App. V.1, at 48-55).
Defendants also submitted affidavits and other documentary exhibits. (Doc. 23,
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Aplt. App. V.1 at 125-260).
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Defendants exhibits, including the Affidavit of
Defendant Robert Moser, Secretary of the Department of Health and Environment,

established that Defendant Moser played no role in deciding whether to issue
marriage licenses to same-sex couples. (Affidavit of Robert Moser (Doc. 23-6,
Aplt. App. V.1, at 252-54). Defendants exhibits also established that the Chief
Judge of the judicial district in which each defendant court clerk is employed made
all decisions related to issuance or rejection of same-sex marriage applications.
(Affidavit of Douglas Hamilton (Doc. 23-7), Affidavit of Bernie Lumbreras (Doc.
23-8); Aplt. App. V.1, at 255-60).
At the hearing on the preliminary injunction, Counsel for Defendant Moser
informed the Court that he had confronted counsel for Plaintiffs with the obvious
jurisdictional conflict between the pending Kansas Supreme Court proceeding and
the relief requested before Judge Crabtree.
(Transcript of October 31, 2014
Hearing (Doc. 44), at 26:1-21, Aplt. App. V.2, at 327). Although Plaintiffs
counsel objected to consideration of the conversation as evidence, he did not deny
that it occurred, nor did he deny that the purpose of the preliminary injunction was
to block further proceedings in the Kansas Supreme Court. (Id.). At the hearing
counsel for Plaintiffs confirmed that the sole relief sought by way of the requested
preliminary injunction was the issuance of marriage licenses to Plaintiffs.
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(Transcript of October 31, 2014 Hearing (Doc. 44), at 12:23, Aplt. App. V.2, at
313).
Judge Crabtree issued his Memorandum Decision and Order granting the
preliminary injunction on November 4, 2014, just two days before oral arguments
were scheduled before the Kansas Supreme Court in the Moriarty mandamus case.
(Kansas Supreme Court Order of October 10, 2014 (Doc. 15-1), Aplt. App. V.1, at
102-04, 104).
Since the issuance of the preliminary injunction none of the four Plaintiffs
has made any attempt to obtain a Kansas marriage license, either from the named
defendants or from any other court clerk or judge.
(Affidavits of Douglas
Hamilton and Bernie Lumbreras, Exhibits to Defendants Memorandum in Support

of Motion to Dismiss Amended Complaint (Docs. 59-1-59-5); Aplt. App. V.2, at
377-91).
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ARGUMENT AND AUTHORITIES

SUMMARY OF ARGUMENT
The preliminary injunction should not have issued because its purpose was
to interfere with the judicial discretion of state court officials performing judicial
functions. The preliminary injunction afforded no relief to any of the Plaintiffs, and
operated exclusively to interpose a federal court order as a bar to further
proceedings in prior litigation pending in the Kansas Supreme Court.
The express language of 42 U.S.C. 1983 as amended in 1996 prohibits the
issuance of the preliminary injunction entered by the District Court. No injunctive
relief should have been considered until a final judgment for declaratory relief was
entered on the merits.
Federal courts have no jurisdiction to grant mandamus relief directed at state
court judges, which is what these Plaintiffs in essence sought recognition of
same-sex marriages. Without that relief, no same-sex couple can achieve the
legally enforceable status of marriage, which requires more in Kansas than a piece
of paper, a ritual, and a notation in the vital statistic records. In Kansas, a license is
not necessary to achieve a lawful marriage and thus compelling issuance of a
license did not alter the legal status quo in Kansas. The availability of common
law marriage in Kansas demonstrated the irrelevance of the actions of the named
defendants with regard to issuance of a marriage license in determining whether
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the Kansas constitutional provision, statutes and common law that bar legal
recognition of same sex marriages remain enforceable. Because there is nothing
that two district court clerks and the Secretary of KDHE can do that would create
the legally enforceable marriages that Plaintiffs desire even if they do everything
that a court could possibly order them to do, in addition to the jurisdictional bars
to the District Courts action, the preliminary injunction should not have issued.
STANDARD OF REVIEW
28 U.S.C. 1292(a)(1) authorizes appellate review of a district court's

interlocutory order granting a preliminary injunction. We review the district
court's grant of a preliminary injunction for abuse of discretion. A district court
abuses its discretion when it commits an error of law or makes clearly erroneous
factual findings. See Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742,
764 (10th Cir.2010). If the claims by the party seeking injunctive relief have no
merit, granting relief is an abuse of discretion. See Flood v. ClearOne Commc'ns,
Inc., 618 F.3d 1110, 1111 (10th Cir.2010). It is appropriate to address the likelihood
of success on the merits in an appeal from an order granting a preliminary
injunction, and to resolve the appeal based on a finding that plaintiffs are unlikely
to succeed on the merits. See Planned Parenthood of Kansas & Mid-Missouri v.
Moser, 747 F.3d 814, 822 (10th Cir. 2014).
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1. UNDER THE RULE OF DISTRICT COURT OF APPEALS V.

FELDMAN, THE DISTRICT COURT DID NOT HAVE
JURISDICTION TO REVIEW AND INTERFERE WITH THE
PENDING ORDER OF THE KANSAS SUPREME COURT OR THE
ORDERS OF THE CHIEF JUDGES OF THE SEVENTH AND
EIGHTEENTH JUDICIAL DISTRICTS OF KANSAS.
Judge Crabtree first requested the parties brief a number of abstention issues,
and then he ignored the controlling judicial decisions in refusing to abstain. By
issuing an injunction whose sole practical effect was to interfere with the prior
jurisdiction of the Kansas Supreme Court, Judge Crabtree abused his discretion.
Federal courts are courts of limited jurisdiction. The United States Supreme
Court reminded all federal courts in United States v. Windsor, __U.S.__, 133 S.
Ct. 2675, 186 L. Ed. 2d 808 (2013) that the states have exclusive control over
domestic relations issues including the determination of marital status and that
there must be no federal law dictating the definition of marriage, by striking down
3 of the Defense of Marriage Act as an improper intrusion on the power of the
states to define marital status and to grant a liberty right to marry to same-sex
couples under state law. As the Supreme Court emphasized in that case, neither
Congress nor the federal courts have the authority to contradict state laws defining
marital status. See Id., at 2691-93.
Before Plaintiffs filed their complaint in the District Court, the Kansas
Supreme Court issued an order confirming that it would assert original jurisdiction
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over a petition for writ of mandamus filed by the Kansas Attorney General against
the sole Kansas judge who had directed his courts staff to issue same-sex marriage
licenses, contrary to Kansas law. Late on the afternoon of October 10, 2014 the
Kansas Supreme Courts order to maintain the status quo ante was issued, stating
in relevant part as follows:
[I]n the interest of establishing statewide consistency, we grant the Attorney
Generals alternative request, advanced in his memorandum, for a temporary
stay of Administrative Order 14-11, insofar as this Order allows issuance of
marriage licenses. Applications for marriage licenses may continue to be
accepted during the period of the stay. The stay shall remain in force
pending further order by this court.
The Kansas Supreme Court ordered oral argument on the petition for writ of
mandamus for the morning of November 6, 2014. (Kansas Supreme Court Order of
October 10, 2014 (Doc. 15-1), Aplt. App. V.1, at 102-04).
Plaintiffs filed their complaint electronically approximately one hour after
the publication of the Kansas Supreme Courts order, seeking declaratory and
injunctive relief to compel the issuance of marriage licenses in response to their
applications in two other Kansas courts, which had previously refused to issue the
requested license because the applicants were all of the same-sex, female.
Affidavits submitted by the defendant court clerks confirmed that they were each
acting under orders of their respective Chief Judges based upon the Chief Judges
individual determinations that same-sex marriage licenses could not be issued
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under Kansas law. ((Affidavit of Douglas Hamilton (Doc. 23-7), Affidavit of

Bernie Lumbreras (Doc. 23-8); Aplt. App. V.1, at 255-60). Those orders were
consistent with the goal of statewide uniformity stated in the October 10, 2014
Kansas Supreme Court Order. (Kansas Supreme Court Order of October 10, 2014
(Doc. 15-1), Aplt. App. V.1, at 102-04).
Judge Crabtree issued the preliminary injunction that is the subject of this
appeal late on November 4, 2014, less than 48 hours prior to the scheduled
arguments before the Kansas Supreme Court in the mandamus proceedings. (Doc.
29, Aplt. App. V.2, at 264). The preliminary injunction on its face compelled the
two defendant court clerks to disobey the direct orders of their respective Chief
Judges and the indirect order of the Kansas Supreme Court to refrain from issuing
the requested licenses. (Doc. 29, at 38; Aplt. App. V.2, at 301).
In response to Judge Crabtrees injunction order the Kansas Supreme Court
issued a show cause order in the mandamus proceedings on November 5, canceling
the oral arguments set for November 6 and ordering additional briefing. The
November 5 show cause order posed the prospect of a direct conflict of
jurisdiction:
In the federal district courts rulings, it exercised jurisdiction over the
constitutionality of Kansas same-sex marriage ban. If Schmidts mandamus
action in our court were to proceed, we would also likely reach the same
constitutional questions reviewed in Marie. And if we were to reach the
opposite conclusion from the federal court - uphold the ban, not block it - the
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courts conflicting judgments would inject additional uncertainty into the

debate of the validity of Kansas same-sex marriage ban.
The show cause order went on to request additional briefs concerning the legal
significance of the apparent conflict of jurisdiction, including issues of comity and
precedence between the two competing courts. The November 5, 2014, Order,
referenced in the November 18, 2014 Supreme Court decision (Doc. 59-6, Aplt.
App.
at
394-95),
is
available
at
the
Courts
Website.
http://www.kscourts.org/Statev.Moriarty/OrderShowCause.pdf.
Ordinarily the first court to exercise jurisdiction over a legal controversy is
given deference by other courts that are later asked to address the same issues. The
general rule in federal courts is for a state courts previously commenced
proceedings to be allowed to proceed without interference by a competing federal
lawsuit, even if constitutional rights are at stake. See Juidice v. Vail, 430 U.S. 327,
334-35, 97 S. Ct. 1211, 1217, 51 L. Ed. 2d 376 (1977):
We now hold, however, that the principles of Younger and Huffman are not
confined solely to the types of state actions which were sought to be
enjoined in those cases. As we emphasized in Huffman, the more vital
consideration behind the Younger doctrine of nonintervention lay not in the
fact that the state criminal process was involved but rather in the notion of
comity, that is, a proper respect for state functions, a recognition of the fact
that the entire country is made up of a Union of separate state governments,
and a continuance of the belief that the National Government will fare best if
the States and their institutions are left free to perform their separate
functions in their separate ways. Huffman, 420 U.S., at 601, 95 S. Ct., at
1206, quoting Younger, 401 U.S., at 44, 91 S. Ct., at 750.
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This is by no means a novel doctrine. In Ex parte Young, 209 U.S. 123, 28 S.

Ct. 441, 52 L. Ed. 714 (1908), the watershed case which sanctioned the use
of the Fourteenth Amendment to the United States Constitution as a sword
as well as a shield against unconstitutional conduct of state officers, the
Court said:
But the Federal court cannot, of course, interfere in a case where the
proceedings were already pending in a state court. Taylor v. Taintor,
16 Wall. 366-370, 21 L. Ed. 287-290; Harkrader v. Wadley, 172 U.S.
148, 19 S. Ct. 119, 43 L. Ed. 399.' Id., at 162, 28 S. Ct., at 455.
These principles apply to a case in which the State's contempt process is
involved. A State's interest in the contempt process, through which it
vindicates the regular operation of its judicial system, so long as that system
itself affords the opportunity to pursue federal claims within it, is surely an
important interest.
The mandamus proceedings serve the same function within the Kansas judicial
system as a citation in contempt. No federal court should intervene to interrupt that
adjudicative process under the rule of Juidice. Judge Crabtrees preliminary
injunction order directly interfered with the mandamus proceedings before the
Kansas Supreme Court in a manner prohibited by Juidice, by imposing
inconsistent duties on the defendant court clerks and by interfering with state court
supervision of its own employees.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292, 125 S.
Ct. 1517, 161 L. Ed. 2d 454 (2005) prevents a federal district court from granting
direct relief from an adverse state court decision, even if the state action is alleged
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to be unconstitutional, because such relief is only available by way of a petition for

certiorari to the United States Supreme Court. See also, In re Kline, 472 B.R. 98,
105 (B.A.P. 10th Cir. 2012), aff'd, 514 F. App'x 810, 2013 WL 1668342 (10th Cir.
2013) (If success on the claims alleged in federal court would necessarily require
the federal court to review and reject the state court's judgment, RookerFeldman
applies.); Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1075 (10th
Cir. 2004)(rule applicable to temporary orders as well as final judgments);
Mounkes v. Conklin, 922 F. Supp. 1501, 1510 (D. Kan. 1996) (rule prohibits
review of state judicial application of law to particular facts, and allows only
generalized challenges to rule itself).
Plaintiffs are limited to challenging ongoing violations of federal rights by
the named defendants under the rule of Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993).
At the time the district court entered its preliminary injunction, the clerks refusal
to issue marriage licenses to same-sex couples in Kansas was compelled by the
temporary restraining order issued by the Kansas Supreme Court in the case of
State ex rel. Schmidt v. Moriarty, No. 112,590, as well as the orders of their own
Chief Judges. To obtain relief by way of temporary injunction against the state
court orders, the federal district court was asked to set aside the Supreme Courts
temporary restraining order That relief required the district court to act, in effect,
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as an appellate court reviewing the decision of the Kansas Supreme Court. Because
no such power of review exists, the preliminary injunction was granted in error and
without jurisdiction.
The relief requested by Plaintiffs and granted by the district court required
the federal court to act as a source of appellate review over the judicial
determinations made by the Chief Judges of the Seventh and Eighteenth Judicial
Districts, determining that these plaintiffs were not lawfully entitled to the issuance
of marriage licenses. No such right of review exists under D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 482, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983). The relief
obtainable in this action can consist of nothing more than a declaratory judgment
concerning the constitutionality of the general laws of Kansas, not a determination
that the laws are being applied to these plaintiffs unlawfully.
2. GIVEN THE CLEAR PROHIBITION AGAINST JUDICIAL
OFFICERS ACTING IN THEIR JUDICIAL OFFICERS IN THEIR
JUDICIAL CAPACITIES IN 42 U.S.C. 1983, THE DISTRICT
COURT ERRED IN GRANTING THE PRELIMINARY
INJUNCTION AGAINST THE CLERKS, JUDICIAL OFFICERS,
ACTING ON ORDERS OF THEIR CHILEF JUDGES WHO HAD
MADE LEGAL DETERMINATIONS THAT SAME-SEX MARRIAGE
APPLICANTS WERE NOT LEGALLY ENTITLED TO A LICENSE
UNDER STATE LAW
The express language of 42 U.S.C. 1983 as amended in 1996 by the
Federal Courts Improvement Act, P.L. 304-17, 309, 110 Stat. 3847, prohibits the
preliminary injunction entered by the district court, which was entered against
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Clerks Hamilton and Lumbreras, judicial officers, for acts in their judicial
capacities. 42 U.S.C. 1983 provides that in any action brought against any
judicial officer for an act or omission taken in such officers judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. See Buchheit v. Green, 705 F.3d 1157 (10th
Cir. 2012); Knox v. Bland, 632 F.3d 1290 (10th Cir. 2011).
In 1996, 42 U.S.C. 1983 was amended to add the prohibition against
preliminary injunctive relief, to legislatively overrule the Supreme Courts decision
in Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984), restore
judicial immunity and to protect judicial officers from litigation. S. Rep. No. 104366 (1996). As amended, 42 U.S.C. 1983 proscribes a federal court from
granting preliminary injunctive relief against a judicial officer for acts taken in
their judicial capacity. The statutory language is intended to be broadly protective,
and protects all actions except those in the clear absence of jurisdiction. S. Rep.
No. 104-366.
This Circuit has applied the rule against preliminary injunctive relief against
court clerks in recent decisions. See Buchheit v. Green, 705 F.3d 1157 (10th Cir.
2012), Landrith v. Gariglietti, No. 12-3048, 505 Fed. Appx. 701, 702-03, 2012 WL
6062668 (10th Cir. Dec. 7, 2012) (unpublished); Knox v. Bland, 632 F.3d 1290
(10th Cir. 2011). None of these on-point controlling authorities, argued by the
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Defendants, were distinguished by the District Courts decision or even mentioned.

(Mem. and Order (Doc. 29), at 13-15; Aplt. App. V.2, at 276-78).
As a matter of law, the District Court Clerks of Kansas are judicial officers,
part of the Kansas Judicial Branch, subject to appointment by their respective
Chief Judges within Judicial Districts created by statute. See, e.g., Kan. Const.,
Art. 3, 1, 6; K.S.A. 20-101, 20-318, 20-319, 20-329, 20-342, 20-343, 20-345.
The district court agreed that Hamilton and Lumbreras were judicial officers for
purposes of the judicial immunity provision of 1983. (Mem. and Order (Doc. 29,
at 14); Aplt. App. V.2, at 277, citing Lundahl v. Zimmer, 296 F.3d 936, 939 (10th
Cir. 2002)). It has long been established that those, as here, carrying out the orders
of a judge or acting as a aide to the judge are entitled to judicial immunity. See,
e.g., Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000); Valdez v. City
and County of Denver, 878 F.2d 1285, 1287-88 (10th Cir. 1989) (summarizing
cases).
The District Court erred in failing to abide by the 1996 Amendment to 42
U.S.C. 1983 which by its plain language prohibits the preliminary injunction
entered in this case. In addition to ignoring Tenth Circuit precedent on point, the
District Court did not apply the plain language which covers judicial officers for
acts taken in their judicial capacity to apply a different standard, based upon
judicial acts, borrowing from erroneous case law, ignoring the facts of record,
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and engaging in faulty legal reasoning to reach the erroneous finding that the
denial of Maries and Wilks and DiTranis respective marriage license
applications by Chief Judges Fleetwood and Fairchild were not judicial acts.
The undisputed facts of record are that the decisions to deny Maries and
Wilks and DiTranis requests for marriage licenses were made by 7th Judicial
District Chief Judge Robert Fairchild and 18th Judicial District Chief Judge
Fleetwood, respectively, who determined as a matter of Kansas law that same-sex
applicants were not legally entitled to marriage licenses under K.S.A. 23-2505(a)
(2014 Supp.). See Complt. ( Doc. 1), at 16-17, 19-21; Affidavit of Bernie
Lumbreras, at 4, 6 (Doc. 23-8); Affidavit of Douglas Hamilton, at 4, 6 (Doc.
23-7); Aplt. App. V.1, at 20-21, 255-60).
For example, the Wichita Plaintiffs state in their complaint that they met
with Chief Judge Fleetwood at the Courthouse and he explained to them that
Kansas law in his judicial opinion did not allow issuance of same sex marriage
licenses. (Complt. (Doc. 1), at 19; Aplt. App. V.1, at 21).
The prepared
statement referred to in the Complaint denying the license came from Judge Eric
Yost, acting in Chief Judge Fleetwoods absence. (Id., at 21; Affidavit of Bernie
Lumberas, at 4, 6 (Doc. 23-8); Aplt. App. V.1, at 21, 260). Plaintiffs dealt with
Chief Judge Fleetwood in his judicial capacity when he informed them of his legal
determination that same-sex applicants were not legally entitled to a marriage
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license. Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 55 L. Ed. 2d 331
(1978). The district courts brief analysis of the issue (Mem. and Order (Doc. 29),
at 13-15; Aplt. App. V.2, at 276-78), entirely fails to address that the
determinations being challenged were made by Judges, not Clerks.
It was also undisputed that any actions with regard to the Douglas County
Plaintiffs were because of Chief Judge Fairchilds Administrative Order 14-13.
(Complt. (Doc. 1), at 17; Aplt. App. V.1, at 20). In the Administrative Order,
which speaks for itself, Chief Judge Fairchild engages in legal analysis when faced
with the application of Thomas Tuozzo and Rodd Hedlund, same-sex marriage
applicants, to reach his determination that same-sex couples are not legally
entitled to a license under K.S.A. 23-2505(a) (2014 Supp.). (Doc. 23-7, Aplt.
App. V.1, at 257-58). The District Court ignored Chief Judge Fairchilds function
or role in issuing the Administrative Order, where he was clearly acting in a
judicial capacity and performing a judicial function, applying fact to law to reach a
determination that Mr. Tuozzo and Mr. Hedlund (and other same-sex applicants),
were not entitled to a license under current Kansas law. (Id.).
While the District Court acknowledged that Administrative Order 14-13
existed and used Judge Fairchilds description of the marriage license function in
general as administrative in nature to buttress its conclusion, Judge Fairchilds
dicta does not control the question of whether he himself was acting in a judicial
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capacity when he issued Administrative Order 14-13. In fact, with due respect,
Judge Fairchilds dicta was not accurate or dispositive of the judicial capacity
inquiry for several reasons. First, in terms of traditional judicial immunity
inquiries, it is the function itself, not how it is characterized, that controls the
inquiry. For example, one of the few cases holding that a judge was acting in an
administrative capacity rather than in a judicial one was Forrester v. White, 484
U.S. 219, 229, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) where the Court found that
in acting as an employer and in an administrative capacity in demoting and
discharging a court employee, the judge was not acting in a judicial capacity. In
issuing the Administrative Order, Judge Fairchild was not acting as an employer
making employment decisions as was the case in Forrester.
Fairchild
Rather, Judge
was applying law to fact, the pending application of Tuozzo and
Hedlund, to determine whether these applicants were legally entitled to the

license under Kansas law, including K.S.A. 23-2505(a) (2014 Supp). This is
similar to the determination of which review was sought in D.C. Court of Appeals
v. Feldman, i.e., whether bar applicants were entitled to a license, which the Court
found to be judicial in nature. 460 U.S. at 479.
In Kansas, either judges or clerks may issue a marriage license. K.S.A. 232505(a) (2014 Supp.). In Kansas, clerks perform this function as an aide to judges
who would otherwise be performing this function. (Hamilton Affidavit (Doc. 2321
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7), at 3; Lumbreras Affidavit (Doc. 23-8), at 3; Aplt. App. V.1, at 255-60)).

The Kansas statute, K.S.A. 23-2505(d)(2014 Supp.), gives judges or clerks the
express authority to administer oaths to marriage license applicants, which is itself
a judicial function or act in a judicial capacity.
As a precondition to the issuance of the marriage license, the statute requires
a legal determination as to whether the applicant is legally entitled to a license.
K.S.A. 23-2505(a) (2014 Supp.). If there is a question about whether a person is
legally entitled to a marriage license, the person is referred to a judge for this legal
determination. (Hamilton Affidavit (Doc. 23-7), at 4; Lumbreras Affidavit (Doc.
23-8), at 4, Aplt. App. V.1, at 256, 260). As of October 7, 2014, Kansas Court
Clerks had been specifically directed and advised that questions about same-sex
marriage licenses were to be deferred to judges for determination of the legal issue.
(Memo to Chief Judges (Doc. 23-2); Aplt. App. V.1, at 143-44). While the District
Courts opinion emphasizes that the duty to issue the license is mandatory to those
legally entitled to it, (Mem. and Order (Doc. 29), at 14-15; Aplt. App. V.2, at 27778 ), the District Courts opinion ignores that a threshold determination of legal
entitlement is required before the issuance becomes mandatory (K.S.A. 23-2505(a)
(2014 Supp.), [t]he clerks of the district court or judges thereof, when applied to
for a marriage license by any person who is one of the parties to the proposed
marriage and who is legally entitled to a marriage license, shall issue a marriage
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license.). (emphasis added). In emphasizing the shall but ignoring the preceding
phrase stating the precondition, the District Court put the emphasis on the wrong
statutory language, ignoring the legal determination required which in this instance
was made by Judges acting in their judicial capacities.
Obviously the fact that Judge Fairchild even had to issue the Administrative
Order in question to rule on the application of Tuozzo and Hedlund shows that the
handling of same-sex marriage applications was anything but ministerial.
The Kansas Supreme Courts November 18, 2014, decision in the parallel
case in which the Attorney General challenged an Administrative Order from
another Chief Judge in another judicial district, State ex rel. Schmidt v. Moriarty,
No. 112,590 (Kan. Nov. 18, 2014), supports the conclusion that an administrative
order making a legal determination on whether same-sex applicants were legally
entitled to a marriage license under K.S.A. 23-2505(a) (2014 Supp.) was judicial
rather than administrative. In that case, Chief Judge Kevin Moriarty in Johnson
County, Kansas had issued an Administrative Order, Amended Administrative
Order 14-11, in which Judge Moriarty analyzed the law and issued his
determination that, based upon his reading of the law, the Johnson County District
Court Clerk was required to issue licenses to same-sex couples as they were legally
entitled to same under K.S.A. 23-2505. In seeking mandamus relief against Judge
Moriarty based on the Administrative Order, the State through the Attorney
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General argued that the Administrative Order was contrary to Kansas law but was
also administrative rather than judicial and in excess of the Judges administrative
authority as Chief Judge under Kan. Const., Art. 3, 1, K.S.A. 20-101, 20-318,
20-319, 20-329, 20-342, and Kansas Supreme Court Rule 107.
In the November 18, 2014, Order, the Kansas Supreme Court disagreed with
the Attorney Generals characterization of the Administrative Order as
administrative rather than judicial, stating:
In arguing that the temporary stay should be kept in place, the State contends
first that Chief Judge Moriarty was without jurisdiction to make a
determination whether a marriage license could be issued to a same-sex
couple in light of the states same-sex marriage ban. We disagree to the
extent that K.S.A. 2013 Supp. 23-2505(a) directs that[t]he clerks of the
district court or judges thereof, when applied to for a marriage license by
any person who is one of the parties to the proposed marriage and who is
legally entitled o a marriage license, shall issue a marriage license . . . .
(Emphasis added). So when Chief Judge Moriarty had a pending marriage
license application before him, he was faced with deciding whether the
applicants were legally entitled to that license. In doing so, he considered
the substantial federal authority existing at the time suggesting the Kansas
ban violated the United States constitution. Chief Judge Moriarty, as a
district court judges, was within his jurisdiction to weigh these authorities
and make a determination. See, e.g., Kitchen v. Herbert, 755 F.3d 1193 (10th
Cir.), cert. denied, 135 S. Ct. 265 (2014) (Utah law violates federal
constitution); Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied 135 S.
Ct. 271 (2014) (Oklahoma law violates federal constitution). . . .
We emphasize we are not concluding that Chief Judge Moriarty was correct
in determining that the Kansas ban is unconstitutional and, therefore, that the
same-sex applicants were legally entitled to a marriage license. But making
that determination was within his jurisdiction as it is with all district court
judges under K.S.A. 2013 Supp. 23-2505(a), some of whom have reached a
different conclusion than Chief Judge Moriarty. . ..
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(State ex rel. Schmidt v. Moriarty, No. 112,590 (Kan. Nov. 18, 2014), at 4-5, (Doc.
59-6); Aplt. App. V.2, at 395-96).
While the District Court did not have the benefit of the Supreme Courts
November 18, 2014, Order at the time it issued its preliminary injunction, Schmidt
v. Moriarty, among the other arguments here, shows that the District Court was
incorrect in its conclusion that the decisions at issue in this case, including but not
limited to Judge Fairchilds Administrative Order, did not constitute judicial
functions or in the terms of the plain language used in the 1996 Amendment to
Section 1983: an act or omission taken in such [judicial] officers judicial
capacity.
In support of its conclusion that the prohibition in Section 1983 did not
apply, the District Court did not analyze the statute or its legislative history. The
District Court applied no relevant case law interpreting the 1996 Amendment. The
District Court did not apply Tenth Circuit law regarding what kinds of acts are
considered judicial acts or acts in a judicial capacity, which include failure to issue
summons or entering a default judgment. See Lundahl v. Zimmer, 296 F.3d 936,
939 (10th Cir. 2002), cert. denied, 538 U.S. 983 (2003); Coleman v. Farnsworth,
No. 03-3296, 90 Fed. Appx. 313, 317-18, 2004 WL 339590 (10th Cir. Feb. 24,
2004) (unpublished) (citing with approval cases from other jurisdictions regarding
the broad scope of a judicial act protected by judicial immunity).
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Rather, at page 14 of its Memorandum and Order, the District Court

miscited and misapplied a Kansas case preceding the 1996 Amendment, Cook v.
City of Topeka, 232 Kan. 334, 654 P.2d 953, 957 (1982). (Doc. 29, at 14; Aplt.
App. V.2, at 277). In Cook, the limited question before the Kansas Supreme Court
was whether the clerks failure to recall a bench warrant was a judicial function,
within the meaning of the judicial function exception to Kansas Tort Claims Act
liability, K.S.A. 75-6104(b), although the Court also considered the related
question under the version of Section 1983 predating the 196 Amendment at issue
here. Id., at 335 ([t]he narrow issue on appeal is whether the district court erred in
concluding the court clerks recall (or failure to recall) a bench warrant is the
performance of a judicial function and therefore cloaked with judicial immunity
under the Kansas Tort Claims Act and the Civil Rights Act of 1871). On the facts
of Cook, the Court found that the municipal court clerk had no discretion on
whether to recall a bench warrant after the traffic fine payment had been made and
that the recall of a warrant was routine and in the case at bar, one of a clerical error.
Id., at 339. That state law question, one of interpreting legislative intent regarding
a state statute, is not controlling of the question of what Congress intended in
enacting the 1996 amendments to 1983. For the reasons discussed above, even
under the misguided rule in Cook, the decision regarding issuance of same-sex
marriage licenses, made by Chief Judge Fairchild and Chief Judge Fleetwood, was
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not ministerial given the threshold legal determination of whether the applicant
was legally entitled to the license required under K.S.A. 23-2505(a) (2014
Supp.).
The District Court also ignored Kansas statutory law, the facts of record, and
miscited this Courts decisions in Bishop to reach the result complained of herein.
In support of its decision that the Kansas Judges and Clerks were not acting in a
judicial capacity here, the District Court cited to this Courts decisions in Bishop v.
Oklahoma, 333 Fed. Appx. 361, 365, 2009 WL 1566802 (10th Cir. 2009); Bishop v.
Smith, 760 F.3d 1070, 1075 (10th Cir. 2014), both of which were decided under
Oklahoma law and the facts of that case. Notably, the language referred to by the
District Court from Bishop, 333 Fed. Appx. at 365 is clearly dicta in deciding the
different issue presented to the Court at that time, whether the Governor or the
Attorney General were proper defendants on the facts and claims presented. No
facts were presented relative to the issue here, and the clerks were not present in
that case to argue the point as recognized in the second Bishop decision, 760 F.3d
at 1087 (neither Smith nor any other court clerk was a party to the case at the time
of Bishop I).
In terms of the second Bishop citation, the page cited by the District Court
contains no discussion relevant to the issue here, but merely a cursory description
that the plaintiffs there applied for a license with that Oklahoma county court clerk
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but were denied. Bishop, 760 F.3d at 1075. Those facts contain no discussion of
any decisions by Oklahoma judges such as are at issue here. Id. In addition, it is
not clear that the question of the 1996 amendment to 42 U.S.C. 1983 was raised
or litigated in that case. Further,
significant respects.
Kansas law differs from Oklahoma law in
The Oklahoma statute at issue in Bishop regarding the
application and issuance of the marriage license, 43 Okla. Stat. Ann. 5, speaks
only in terms of the clerk, and does not mention judges: if the clerk of the district
court is satisfied of the truth and sufficiency of the application and that there is no
legal impediment to such marriage, the court clerk shall issue the marriage license
authorizing the marriage and a marriage certificate. . ..). Bishop does not address
or resolve the question presented in this appeal.
Judge Crabtree rejected the suggestion made at oral argument that Kansas
law might recognize same-sex common law marriages, which would not involve
Secretary Moser or the Court Clerks at all, stating without citation of authority that
such a scheme would be unconstitutional. (Mem. and Order (Doc. 29), at 32-33;
Aplt. App. V.2, at 295-96). Neither Bishop nor Kitchen decided whether a legal
system that employed one procedure for traditional marriage and another for samesex relationships would fail constitutional scrutiny. That issue was expressly
reserved and not decided in the district court order issued in Bishop. See Bishop v.
U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1280, n.27 (N.D. Okla. 2014). The
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Complaint itself makes no express reference to a constitutional challenge to

common law marriage as it is practiced in Kansas. (Complt. (Doc.1), Aplt. App.
V.1, at 15-20).
3. INJUNCTIVE RELIEF AGAINST SECRETARY MOSER WAS
PLAINLY IMPROPER GIVEN PLAINTIFFS LACK OF STANDING
TO SEEK SUCH RELIEF UNDER PRIOR DECISIONS OF THIS
COURT AND THE FACT THAT SECRETARY MOSER IS NOT A
PROPER DEFENDANT UNDER THIS COURTS ELEVENTH
AMENDMENT JURISPRUDENCE
Plaintiffs lack standing to sue Secretary Moser, who was not and is not a
proper party defendant in this lawsuit under the analysis followed in Bishop v.
Oklahoma, 333 Fed. Appx. 361, 2009 WL 1566802 (10th Cir. 2009) and Bishop v.
Smith, 760 F.3d 1070 (2014). As an executive officer appointed under K.S.A. 755601 (2014 Supp.), Secretary Moser has no supervisory authority over the judicial
officials who would be called upon in appropriate cases to enforce the asserted
rights of same-sex couples. As the records custodian for completed marriage
certificates, he has insufficient involvement in the issuance of marriage licenses to
be a defendant amenable to suit under the Eleventh Amendment. See Peterson v.
Martinez, 707 F.3d 1197 (10th Cir. 2013) and American Tradition Institute v.
Colorado, 876 F. Supp. 2d 1222, 1238-39 (D. Colo. 2012). Judicial officers are not
employees, agents, or subordinates of the Kansas Department of Health and
Environment, an executive agency, but rather are part of the Kansas Judicial
Branch and subject to its supervision and control. See, e.g., Kan. Const. Art. 3, 1;
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K.S.A. 20-101, K.S.A. 20-318; K.S.A. 20-319; K.S.A. 20-329; K.S.A. 20-343;
K.S.A. 20-345.
CONCLUSION
In the weeks following the issuance of the preliminary injunction in this case
the likelihood that Plaintiffs will ultimately prevail has become substantially
uncertain given the Supreme Courts Order granting certiorari in the DeBoer case.
No. 14-571, 83 USLW 3315, 2015 WL 213650 (U.S. Jan. 16, 2015). When
Plaintiffs filed their complaint they were so certain of the likelihood of success in a
federal forum that they ignored relevant procedural and jurisdictional
considerations. Even if ultimate judgment on the merits had been obviously
inevitable, issuance of this preliminary injunction still would not have been proper.
Since the grant of the petitions for certiorari filed in the DeBoer case, ultimate
success for plaintiffs is no longer so obvious.
For all of the reasons stated herein, the Defendants Appellants Secretary of
Health and Environment Robert Moser and Douglas A. Hamilton, Clerk of the
District Court of the 7th Judicial District of Kansas and Bernie Lumbreras, Clerk of
the District Court of the 18th Judicial District of Kansas, request that the order
entering the preliminary injunction against them on November 4, 2014, be reversed
and the preliminary injunction vacated.
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Respectfully submitted,
DEREK SCHMIDT
Tel: 785-368-8420; Fax: (785)-291-3767
Attorney for Defendant/Appellant Moser
OFFICE OF ATTORNEYGENERAL
DEREK SCHMIDT
s/ M.J. Willoughby
M.J. Willoughby, KS No. 14059
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 296-2215; Fax: (785) 291-3767
Email: MJ.Willoughby@ag.ks.gov
Attorney for Defendant-Appellant
Douglas A. Hamilton and Bernie Lumbreras
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STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument on this appeal. With regard to PlaintiffAppellees likelihood of success on the merits, an issue presently before the U.S.
Supreme Court, this appeal involves the constitutionality of the Kansas
Constitution, as well as Constitutional issues under the U.S. Constitution.
However, and in the first instance, this appeal presents issues of whether the
District Court properly exercised jurisdiction in this case given the facts and the
law. It may also be advantageous for the Court to have the opportunity to ask
questions and for counsel to respond to them. Oral argument may significantly aid
in the decision-making process in this case.
CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(a)(7), the undersigned certify that the
brief complies with the type-volume limitation stated in the above-cited rule,
specifically, the brief contains 8,591 words, as determined by Microsoft Office
Word 2007 word processing system, including parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii).
s/ Steve R. Fabert
Steve R. Fabert, KS No. 10355
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CERTIFICATE OF PRIVACY REDACTIONS

As required by Fed. R. App. P. 25(a)(5) and 10th Cir. R. 25.5, the
undersigned attorney certifies that all required privacy redactions have been made.
s/ Steve R. Fabert
CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that a copy of the foregoing BRIEF OF APPELLANTS, as
submitted in digital form is an exact copy of the written document filed with the
Clerk.
s/ Steve R. Fabert
CERTIFICATE OF SCANNING
The digital submissions have been scanned for viruses with the most recent
version of the Trend Local Scanner, which is updated daily, and according to the
program are free of viruses.
s/ Steve R. Fabert
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CERTIFICATE OF SERVICE
I hereby certify that on behalf of Defendant/Appellant, the original and
seven written copies of the above and foregoing brief were served on January 28,
2015, by First-Class Mail, postage prepaid, and an identical copy in digital form
was sent the same day by email addressed to:
Elisabeth Schumaker
Clerk of the Court
U.S. Court of Appeals
Byron White U.S. Courthouse
1823 Stout Street
Denver, Colorado 80237
esubmissions@ca10.uscourts.gov
I further certify that the above and foregoing was served on January 28,
2015, by using the CM/ECF system to Counsel for Appellees:
Stephen Douglas Bonney
ACLU Foundation of Kansas
3601 Main Street
Kansas City, MO 64111
dbonney@aclukansas.org
Mark P. Johnson
Dentons US, LLP
4520 Main Street, Suite 1100
Mark.johnson@dentons. com
Joshua A. Block
American Civil Liberties Foundation
125 Broad Street, 18th Floor
New York, NY 100004
jblock@aclu.org.
s/ Steve R. Fabert
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ATTACHMENT
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Case No. 14-3246
IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
KAIL MARIE and MICHELLE L. BROWN, and KERRY WILKS, Ph.D and
DONNA DITRANI, Plaintiffs/Appellees,
v.
ROBERT MOSER, M.D. in his official capacity as Secretary of the Kansas
Department of Health and Environment and
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)
On Appeal from the United States District Court

For the District of Kansas
The Honorable Daniel D. Crabtree
United States District Judge
Case No. 14-CV-02518-DDC/TJJ
APPENDIX OF COMBINED OPENING BRIEF OF APPELLANTS

DEREK SCHMIDT
Tel: 785-368-8420
Attorney for Defendant Moser
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APPENDIX
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INDEX TO APPENDIX
Page
Volume 1
U.S. District Court Docket Sheet ......................................................................... 1-14
Complaint for Declaratory and Injunctive Relief .............................................. 15-34
Plaintiffs' Motion for Preliminary Injunction and Temporary
Restraining Order ............................................................................................... 35-36
Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction and
Temporary Restraining Order ............................................................................ 37-55
Plaintiffs' Memorandum of Law Regarding Abstention.................................... 56-67
Response of Defendant Moser in Opposition to Plaintiffs' Motion for Temporary
Restraining Order or Preliminary Injunction ..................................................... 68-89
Defendant Clerks' Response in Opposition to Plaintiffs' Motion for Temporary
Restraining Order ............................................................................................. 90-104
Plaintiffs' Reply Memorandum Regarding Plaintiffs' Motion for Preliminary
Injunction or Temporary Restraining Order .................................................. 105-124
Defendants' Exhibits in Opposition to Plaintiffs' Motion for
Preliminary Injunction ................................................................................... 125-260
Response to Petition for Issuance of Writ of Mandamus and Request for
Immediate Relief, State ex. rel Schmidt v. Moriarty ........................... 127-135
Appendix to Response to Petition for Issuance of Writ of
Mandamus, State ex. rel Schmidt v. Moriarty ..................................... 136-164
Amicus Brief of All's Fair Kansas Foundation, State ex. rel Schmidt v.
Moriarty ............................................................................................... 165-183
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Brief of Petitioner, State ex. rel Schmidt v. Moriarty .......................... 184-217

Respondents' Brief in Further Response to Petition for Writ of
Mandamus, State ex. rel Schmidt v. Moriarty ..................................... 218-251
Affidavit of Defendant Robert Moser ................................................. 252-254
Affidavit of Douglas A. Hamilton ....................................................... 255-258
Affidavit of Bernie Lumbreras ............................................................ 259-260
Volume 2
Supplemental Authorities in Opposition to Plaintiffs' Motion for Preliminary
Injunction ....................................................................................................... 261-263
Memorandum and Order .............................................................................. 264-301
Transcript of Plaintiffs' Motion for Preliminary Injunction Before the Honorable
Daniel D. Crabtree, United States District Judge .......................................... 302-359
Motion to Dismiss Amended Complaint ....................................................... 360-362
Memorandum in Support of Motion to Dismiss Amended Complaint ......... 363-376
Affidavit of Douglas A. Hamilton ....................................................... 377-379
Affidavit of Bernie Lumbreras ............................................................ 380-381
18th Judicial District Administrative Order ........................................ 382-384
Affidavit of Douglas A. Hamilton of October, 2014 .......................... 384-387
Affidavit of Bernie Lumbreras of October, 2014 ................................ 388-391
Kansas Supreme Court Decision of Nov. 18, 2014 ............................. 392-399
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Appellate Case: 14-3246 Document: 01019377512 Date Filed: 01/28/2015 Page: 19

Case 2:14-cv-02518-DDC-TJJ Document 1 Filed 10/10/14 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION
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, and
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.
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Case No. _____
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I.
1.
PRELIMINARY STATEMENT
Plaintiffs Kail Marie and Michelle Brown, and Kerry Wilks and Donna DiTrani
(collectively, Plaintiffs or Plaintiff Couples) are loving, committed same-sex couples.

Plaintiffs bring this action pursuant to 42 U.S.C. 1983 seeking declaratory and injunctive relief
for the violation of Plaintiffs rights under the Fourteenth Amendment to the United States
Constitution caused by the exclusion of same-sex couples from the freedom to marry in Kansas.
2.
Through Kansass constitutional and statutory marriage bans and through
Defendants enforcement of those bans, the State generally and Defendants specifically send a
purposeful message that they view lesbians, gay men, and their children as second-class citizens
who are undeserving of the legal sanction, respect, protections, and support that heterosexuals
and their families are able to enjoy through marriage. This discrimination (referred to herein as
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the States marriage ban) is enshrined both in the States statutes and Article 15, Section 16 of
the Kansas Constitution, which limits marriage to couples composed of one man and one
woman and declares that All other marriages . . . to be contrary to the public policy of this state
and . . . void. KAN. CONST., art. 15, 16.
3.
Pursuant to the Equal Protection and Due Process Clauses of the Fourteenth
Amendment to the United States Constitution, Plaintiffs bring this action challenging the validity
of Kansass laws prohibiting marriage between two people of the same sex: Article 15, Section
16 of the Kansas Constitution and Kansas Statutes Annotated 23-2501, et seq. (2013 Supp.).
Plaintiffs seek declaratory and injunctive relief for violations of the Equal Protection and Due
Process Clauses of the U.S. Constitution (U.S. CONST. amend. xiv, 1).
4.
Marriage is universally recognized and celebrated as the hallmark of a
couples love for and commitment to one another. When two people marry, they commit
personally and publicly to build a life together, and they ask their families, friends,
communities, and government to respect, honor, and support that commitment. Marriage has
long been recognized and valued for its beneficial contribution to the welfare of society and to
individual happiness. Lesbians and gay men in Kansas are denied the freedom afforded to
different-sex couples in this State to have their loving, committed relationships recognized
through marriage.
5.
Plaintiffs seek equal access to marriage as the only means to secure their rights to
due process and equal protection of the law and to eliminate the myriad serious harms inflicted
on them by the marriage ban and Defendants enforcement of it. Accordingly, Plaintiffs bring
this suit seeking declaratory and injunctive relief on the grounds that Kansass exclusion of
same-sex couples from marriage and Defendants enforcement of the marriage ban violate the
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due process and equal protection guarantees of the Fourteenth Amendment to the United States
Constitution.
II.
PARTIES
Plaintiffs
6.
Kail Marie and Michelle L. Brown are a lesbian couple residing in Lecompton,
Douglas County, Kansas. Kail and Michelle have been in a committed, loving relationship with
each other for twenty years.
7.
Kerry Wilks, Ph.D., and Donna DiTrani are a lesbian couple residing in Wichita,
Kansas, within the District of Kansas. Kerry and Donna have been in a committed, loving
relationship with each other for five years.
Defendants
8.
Defendant Robert Moser, M.D., is the Secretary of the Kansas Department of
Health and Environment (KDHE). Dr. Mosers duties include directing and supervising
Kansass system of vital records and serving as the custodian of its records; directing,
supervising, and controlling the activities of all persons pertaining to the operation of the system
of vital records. As part of these vital records-related duties, Dr. Moser furnishes forms for the
marriage license, marriage certificate, marriage license worksheet, and application for marriage
license used throughout the State of Kansas; maintains a publicly available vital records index of
marriages; and compiles, publishes, and makes available to the public aggregate data on the
number of marriages occurring in the State of Kansas, including the age and race of the spouses,
and the number of minor children involved. Dr. Moser must ensure compliance through all of
these functions with relevant Kansas laws, including those that currently exclude same-sex
couples from marriage. Upon information and belief, this includes furnishing forms that prohibit
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same-sex couples from marrying by requiring a Bride and a Groom. Dr. Moser is a person
within the meaning of 42 U.S.C. 1983 and was acting under color of state law at all times
relevant to this complaint. He is sued in his official capacity.
9.
Douglas A. Hamilton is the Clerk of the District Court for the 7th Judicial District,
also known as the Douglas County District Court, which sits in Lawrence, Kansas. As Clerk,
Mr. Hamilton is responsible for the issuance of marriage licenses in Douglas County. Mr.
Hamiltons duties include issuing marriage licenses in Douglas County; requiring the parties
contemplating marriage to state under oath the information required for the marriage record, and
delivering certificates of that information to the parties along with the marriage license; levying
and collecting a tax on each marriage license; authorizing qualified ministers to perform
marriage rites; filing and preserving the originals and indexing the names of both spouses, upon
return of the marriage license and certificate from the officiant; forwarding a record of each
marriage to the Kansas Department of Health and Environment; and correcting marriage records
as needed. Mr. Hamilton must ensure compliance through all of these functions with relevant
Kansas laws, including those that exclude same-sex couples from marriage. Mr. Hamilton is a
person within the meaning of 42 U.S.C. 1983 and was acting under color of state law at all
times relevant to this complaint. He is sued in his official capacity.
10.
Defendant Bernie Lumbreras is the Clerk of the District Court for the 18th Judicial
District, also known as the Sedgwick County District Court, which sits in Wichita, Kansas. As
Clerk, Ms. Lumbreras is responsible for the issuance of marriage licenses in Sedgwick County,
Kansas. Ms. Lumbrerass duties include issuing marriage licenses; requiring the parties
contemplating marriage to state under oath the information required for the marriage record, and
delivering certificates of that information to the parties along with the marriage license; levying
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and collecting a tax on each marriage license; authorizing qualified ministers to perform
marriage rites; filing and preserving the originals and indexing the names of both spouses, upon
return of the marriage license and certificate from the officiant; forwarding a record of each
marriage to the Kansas Department of Health and Environment; and correcting marriage records
as needed. Ms. Lumbreras must ensure compliance through all of these functions with relevant
Kansas laws, including those that exclude same-sex couples from marriage. Ms. Lumbreras is a
person within the meaning of 42 U.S.C. 1983 and was acting under color of state law at all
times relevant to this complaint. She is sued in her official capacity.
III.
11.
JURISDICTION & VENUE
This action arises under the Constitution of the United States and the provisions
of 42 U.S.C. 1983. The jurisdiction of this court is invoked pursuant to 28 U.S.C. 1331 and
1343(a), and pursuant to 42 U.S.C. 1983.
12.
Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b).
13.
This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of
Civil Procedure, and 28 U.S.C. 2201 and 2202.
IV.
14.
STATEMENT OF FACTS
Plaintiff Couples are residents of the State of Kansas who experience the same
joys and challenges of family life as their heterosexual neighbors, co-workers, and other
community members who may freely marry. Plaintiffs are productive, contributing citizens but
must do so without the same legal shelter, dignity, and respect afforded by the State of Kansas to
other families through access to the universally celebrated status of marriage. The States
exclusion of Plaintiffs from marriage, and Defendants enforcement of that exclusion, subjects
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Platinffs to an inferior second class status relative to the rest of the political community and
deprives them of equal dignity, security, and legal protections afforded to other Kansas families.
15.
But for the fact that they are couples of the same sex, Plaintiffs are legally
qualified to marry under the laws of the State of Kansas, and they wish to marry in Kansas. Each
is over the age of 18 and fully competent, and none of the plaintiffs is precluded from marriage
as a result of having another spouse or being closely related to her or his partner. Each of the
plaintiffs is willing to provide requisite information to receive a marriage license and to pay the
required fees. Plaintiffs are able and eager to assume the responsibilities of marriage.
16.
On October 8, 2014, Kail Marie appeared in person at the office of the Clerk of
the Douglas County District Court, and sought to apply for a marriage license. A deputy clerk
working under the supervision of Defendant Hamilton gave Plaintiff Marie an application for a
marriage license, which Plaintiff Marie fully completed and returned to the deputy clerk, who
then gave Plaintiff Marie a marriage license worksheet and instructed her to return on Tuesday,
October 14, 2014.
17.
On Thursday, October 9, 2014, the Chief Judge of the Seventh Judicial District
issued Administrative Order 14-13, which states that [t]he court performs an administrative
function when it issues a marriage license and indicated that in exercising that administrative
function it is bound to apply and follow existing Kansas laws. The Administrative Order
concluded by saying that [t]he Clerk of the District Court shall not issue a marriage license to
these applicants or to any other applicants of the same sex. Thus, it is clear that Plaintiffs
application for a marriage license will be denied because they are a same sex couple.
18.
On October 6, 2014, Kerry Wilks and Donna DiTrani appeared in person at the
office of the Clerk of the District Court for the 18th Judicial District in Wichita, Kansas, and
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sought to apply for a marriage license. A deputy clerk and that clerks supervisor both of
whom work under the supervision of Defendant Lumbreras refused to give Plaintiffs Wilks and
DiTrani an application for a marriage license because she seeks to marry another woman.
19.
On October 7, 2014, Kerry Wilks returned to the office of the Clerk of the District
Court for the 18th Judicial District in Wichita, Kansas, and sought to apply for a marriage license.
Once again, a deputy clerk who works under the supervision of Defendant Lumbreras refused to
give Plaintiff Wilks an application for a marriage license because she seeks to marry another
woman. In addition, on this occasion, Plaintiff Wilks spoke to Chief Judge Fleetwood, who told
her that she could not obtain a marriage license in Kansas to marry another woman.
20.
On October 8, 2014, Kerry Wilks again returned to the office of the Clerk of the
District Court for the 18th Judicial District in Wichita, Kansas, and sought to apply for a marriage
license. Yet again, deputy clerks under the supervision of Defendant Lumbreras refused to give
Plaintiff Wilks an application for a marriage license because she seeks to marry another woman.
21.
On October 9, 2014, Plaintiffs Wilks and DiTrani returned to the office of the
Clerk of the District Court for the 18th Judicial District in Wichita, Kansas, and sought to apply
for a marriage license. This time, a deputy clerk gave them an application for marriage license,
which they filled out and handed back to the deputy clerk. At that point, however, the deputy
clerk reading from a prepared statement told Kerry Wilks and Donna DiTrani that their
application for a marriage license was denied because same-sex marriages violate provisions of
the Kansas Constitution and statutes and that the office of the District Court Clerk for the 18th
Judicial District will not issue marriage licenses to same-sex couples until a court rules on the
constitutionality of the Kansas constitutional provision and related statutes.
Kansas Law Singles Out Same-Sex Couples and Excludes Them from Marriage
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22.
Since 1980, the Kansas Legislature has considered and has enacted a series of
statutory and constitutional bans designed to exclude same-sex couples from marriage. These
marriage bans cannot be explained by reference to legitimate public policies that could justify
the disadvantages the marriage bans impose on same-sex couples. Rather, the texts and histories
of these enactments demonstrate that interference with the equal dignity of same-sex couples
was more than a mere side effect of these various enactments it was their essence.
23.
In 1980, a few years after same-sex couples in other jurisdictions filed the first
lawsuits seeking the freedom to marry, the Kansas Legislature for the first time enacted a
statutory provision that specifically excluded same-sex couples from marriage. The new statute
limited marriage in Kansas people who are of opposite sex.
24.
In 1996, the Legislature enacted the Marriage Protection Act, which declared
all marriages other than between a man and a woman void and provided that [i]t is the strong
public policy of this state only to recognize as valid marriages from other states that are between
a man and a woman.
25.
In April 2005, the Kansas Constitution was amended to include the following
provision: (a) The marriage contract is to be considered in law as a civil contract. Marriage
shall be constituted by one man and one woman only. All other marriages are declared to be
contrary to the public policy of this state and are void. (b) No relationship, other than a marriage,
shall be recognized by the state as entitling the parties to the rights or incidents of marriage.
KAN. CONST. art. 15, 16.
26.
Thus, in Kansas today, marriage is governed by Chapter 23, Article 25
(Marriage) of the Kansas Statutes Annotated. Recent amendments to the marriage statutes
prohibit marriage for same-sex couples. Specifically, Kansas defines the marriage relationship
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as a civil contract between two parties who are of opposite sex. All other marriages are
declared to be contrary to the public policy of this state and are void. Kan. Stat. Ann. 232501.
27. Pursuant to these laws, same-sex couples in Kansas are prohibited from all access to
marriage; they can neither marry in Kansas nor have a valid marriage from another jurisdiction
recognized in Kansas.
The Exclusion of Same-Sex Couples from Marriage Inflicts Profound Harms on Plaintiffs
28.
Barring same-sex couples from marriage disqualifies them from critically
important rights and responsibilities that different-sex couples rely upon to secure their
commitment to each other and to safeguard their families. By way of example only, same-sex
couples are denied the ability to solemnize their relationships through state-sacntioned
ceremonies and officiants and to inherit property through intestate succession laws and to file
joint state tax returns.
29.
In addition to the tangible harms listed above, Plaintiffs are denied the unique
social recognition that marriage conveys. Without access to the familiar language and legal label
of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and
permanence of their commitment, or to obtain respect for that commitment as others do simply
by invoking their married status.
30.
The government is a powerful teacher of discrimination to others. By decreeing
that the relationships of same-sex couples should be ignored in Kansas and enforcing that policy,
the State and Defendants instruct all persons with whom same-sex couples interact that their
relationships are less worthy than others. Bearing the imprimatur of the government, the States
statutory and constitutional marriage ban, and Defendants enforcement of it, communicates a
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view that same-sex couples are unfit for the dignity, respect, and stature afforded to different-sex
couples, and this encourages others to follow the governments example in discriminating
against them.
31.
Many private entities defer to the States and Defendants conferral of marital
status in defining family for purposes of an array of important benefits, often resulting in the
exclusion of same-sex couples from important safety nets such as private employer-provided
health insurance for family members. The State and Defendants also encourage disrespect of
committed same-sex couples by others in workplaces, schools, businesses, and other major
arenas of life, in ways that would be less likely to occur and more readily corrected if marriage
were available to same-sex couples.
The States Exclusion Of Same-Sex Couples from Marriage Is Not Even Rationally Related
To A Legitimate Governmental Purpose, Let Alone Substantially Related To An Important
Government Purpose Or Narrowly Tailored To A Compelling Governmental Purpose
32.
No legitimate, let alone important or compelling, interest exists to exclude same-
sex couples from the historic and highly venerated institution of marriage. An individuals
capacity to establish a loving and enduring relationship does not depend upon that individuals
sexual orientation or sex in relation to his or her committed life partner, nor is there even a
legitimate interest in justifying same-sex couples exclusion from marriage and the spousal
protections it provides on such bases.
33.
Neither history nor tradition can justify the States discriminatory exclusion of
same-sex couples from marriage. Marriage has remained vital and enduring because of, not
despite, its resiliency in response to a dynamic society, as society and the courts have cast off
prior restrictions on interracial marriage and coverture. The Constitution is not confined to
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historic notions of equality, and no excuse for the States discriminatory restriction can be found
in the pedigree of such discrimination.
34.
As the Supreme Court has made clear, the law cannot, directly or indirectly, give
effect to private biases. Liberty and equality, not moral disapproval, must be the guiding
framework for a states treatment of its citizens.
35.
Excluding same-sex couples from marriage does nothing to protect or enhance
the rights of different-sex couples. Different-sex spouses will continue to enjoy the same rights
and status conferred by marriage regardless of whether same-sex couples may marry,
unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.
V.
CLAIMS FOR RELIEF
First Claim for Relief: Deprivation of Due Process under U.S. Const. Amend. XIV
43.
Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of
this complaint as though fully set forth herein.

44.
Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.

45.
The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. 1983, provides that no state shall deprive any person of life, liberty, or
property, without due process of law. U.S. Const. amend. XIV, 1.
46.
Kansas Constitution Article 15, 16, Kansas Statutes Annotated 23-2501 and
23-2508, and all other sources of state law that preclude marriage for same-sex couples or
prevent recognition of their marriages violate the due process guarantee of the Fourteenth
Amendment both facially and as applied to Plaintiffs.
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47.
The right to marry the unique person of ones choice and to direct the course of
ones life in this intimate realm without undue government restriction is one of the fundamental
liberty interests protected by the Due Process Clause of the Fourteenth Amendment.
Defendants actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs
choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
The Due Process Clause also protects choices central to personal dignity and autonomy,
including each individuals rights to family integrity and association. Defendants actions to
enforce the marriage ban directly and impermissibly infringe Plaintiffs deeply intimate,
personal, and private decisions regarding family life, and preclude them from obtaining full
liberty, dignity, and security for themselves, their family, and their parent-child bonds.
48.
As the Secretary of Health and Environment, Defendant Mosers duties and
actions to ensure compliance with the States discriminatory marriage ban by, for example,
furnishing forms for marriage licenses that prohibit same-sex couples from marrying by
requiring a Bride and a Groom violate the Plaintiffs fundamental right to marry and
constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process
under the Fourteenth Amendment to the United States Constitution.
49.
As Douglas County District Court Clerk, Defendant Hamiltons duties and actions
to ensure compliance with the States discriminatory marriage ban by, for example, denying
same-sex couples marriage licenses, violate the fundamental right to marry and the rights,
protected under the Fourteenth Amendment to the United States Constitution, to liberty, dignity,
autonomy, family integrity, association, and due process of Kail Marie and Michelle Brown.
50.
As Sedgwick County District Court Clerk, Defendant Lumbrerass duties and
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denying same-sex couples marriage licenses, violate the fundamental right to marry and the
rights, protected under the Fourteenth Amendment to the United States Constitution, to liberty,
dignity, autonomy, family integrity, association, and due process of Kerry Wilks and Donna
DiTrani.
51.
Defendants actions thus deny and abridge Plaintiffs fundamental right to marry,
and liberty and due process interests in autonomy, and family integrity and association, by
penalizing Plaintiffs self-determination in the most intimate sphere of their lives.
52.
Defendants cannot satisfy the Due Process Clauses decree that governmental
interference with a fundamental right or liberty interest may be sustained only upon a showing
that the burden is narrowly tailored to serve a compelling or even important governmental
interest, as the marriage ban is not even tailored to any legitimate interest at all.
Second Claim for Relief: Deprivation of Equal Protection under U.S. Const. Amend. XIV
53.

54.
Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.

55.
The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. 1983, provides that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.
56.
Kansas Constitution Article 15, 16, Kansas Statutes Annotated 23-2501 and
23-2508, and all other sources of state law that preclude marriage for same-sex couples or
prevent recognition of their marriages violate the equal protection guarantee of the Fourteenth
Amendment both facially and as applied to Plaintiffs. Moreover, by enshrining discrimination in
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the form of a constitutional amendment, Kansas Constitution Article 15, 16 deprives lesbian
and gay Kansans of equal protection of the laws by locking them out of the political process and
making it uniquely more difficult to secure legislation on their behalf. The conduct of
Defendants in enforcing these laws violates the right of Plaintiffs to equal protection by
discriminating impermissibly on the basis of sexual orientation and sex.
57.
As the Secretary of Health and Environment, Defendant Mosers duties and
furnishing forms for marriage licenses that prohibit same-sex couples from marrying by
requiring a Bride and a Groom violate the constitutional rights of Plaintiffs to equal
treatment.
58.
As Douglas County District Court Clerk, Defendant Hamiltons duties and actions
to ensure compliance with the States discriminatory marriage ban by, for example, denying
same-sex couples marriage licenses, violate the constitutional rights to equal treatment of Kail
Marie and Michelle Brown.
59.
As Sedgwick County District Court Clerk, Defendant Lumbrerass duties and
denying same-sex couples marriage licenses, violate the constitutional rights to equal treatment
of Kerry Wilks and Donna DiTrani.
60.
The States marriage ban, and Defendants actions to enforce it, denies same-sex
couples equal dignity and respect, and deprives their families of a critical safety net of rights and
responsibilities. The States marriage ban brands lesbians and gay men as second-class citizens
through a message of government-imposed stigma and fosters private bias and discrimination, by
instructing all persons with whom same-sex couples interact, including their own children, that
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their relationship is less worthy than others. The States marriage ban and Defendants actions
reflect moral disapproval and antipathy toward lesbians and gay men.
61.
Same-sex couples such as the Plaintiff Couples are identical to different-sex
couples in all of the characteristics relevant to marriage.

62.
Same-sex couples make the same commitment to one another as different-sex
couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan
their futures together, and hope to grow old together. Like different-sex couples, same-sex
couples support one another emotionally and financially and take care of one another physically
when faced with injury or illness.
63.
Plaintiffs seek to marry for the same emotional, romantic, and dignitary reasons,
and to provide the same legal shelter to their families, as different-sex spouses.
64.
Discrimination Based on Sexual Orientation. The States marriage ban targets
lesbian and gay Kansans as a class for exclusion from marriage and discriminates against each
Plaintiff based on his or her sexual orientation both facially and as applied.
65.
The exclusion of Plaintiffs from marriage based on their sexual orientation
subjects Defendants conduct to strict or at least heightened scrutiny, which Defendants conduct
cannot withstand because the exclusion does not even serve any legitimate governmental
interests, let alone any important or compelling interests, nor does it serve any such interests in
an adequately tailored manner.
66.
Lesbians and gay men have suffered a long and painful history of discrimination
in Kansas and across the United States.

67.
Sexual orientation bears no relation to an individuals ability to perform in or
contribute to society.
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68.
Sexual orientation is a core, defining trait that is so fundamental to ones identity
and conscience that a person may not legitimately be required to abandon it (even if that were
possible) as a condition of equal treatment.
69.
Sexual orientation generally is fixed at an early age and highly resistant to change
through intervention. No credible evidence supports the notion that such interventions are either
effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
professional organization approves interventions that attempt to change sexual orientation, and
virtually all of them have adopted policy statements cautioning professionals and the public
about these treatments.
70.
Lesbians and gay men are a discrete and insular minority, and ongoing prejudice
against them continues seriously to curtail the operation of those political processes that might
ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at
the state and federal level than racial minorities and women had when race- and sex-based
classifications were declared to be suspect and quasi-suspect, respectively.
71.
Lesbians and gay men lack express statutory protection against discrimination in
employment, public accommodations, and housing at the federal level and in more than half the
states, including the Commonwealth; are systematically underrepresented in federal, state, and
local democratic bodies; have been stripped of the right to marry through 30 state constitutional
amendments and are currently not permitted to marry in about 30 states; and have been targeted
across the nation through the voter initiative process more than any other group.
72.
Discrimination Based on Sex. The States marriage ban discriminates against
Plaintiffs on the basis of sex, both facially and as applied, barring Plaintiffs from marriage or
from being recognized as validly married, solely because each of the Plaintiffs wishes to marry a
16
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life partner of the same sex. The sex-based restriction is plain on the face of the States laws,
which restrict marriage to one man and one woman, Kan. Const. art. 15, 16, and prohibit
marriage or recognition of a marriage that is not between two parties who are of opposite sex,
Kan. Stat. Ann. 23-2501.
73.
Because of these sex-based classifications, Kail Marie is precluded from marrying
her devoted life partner because she is a woman and not a man; were Kail a man, she could
marry Michelle Brown. Similarly, Kerry Wilks is precluded from marrying Donna DiTrani.
74.
The States marriage ban also serves the impermissible purpose of enforcing and
perpetuating sex stereotypes by excluding Plaintiffs from marriage, or from being recognized as
validly married, because Plaintiffs have failed to conform to sex-based stereotypes that men
should marry women, and women should marry men.
75.
Given that there are no longer legal distinctions between the duties of husbands
and wives, there is no basis for the sex-based eligibility requirements for marriage.
76.
The exclusion of Plaintiffs from marriage based on their sex and the enforcement
of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based
discrimination.
77.
Discrimination With Respect to Fundamental Rights and Liberty Interests
Secured by the Due Process Clause. The marriage ban discriminates against Plaintiffs based on
sexual orientation and sex with respect to the exercise of the fundamental right to marry, and
their liberty interests in dignity, autonomy, and family integrity and association. Differential
treatment with respect to Plaintiffs exercise of fundamental rights and liberty interests, based on
their sexual orientation and sex, subjects Defendants conduct to strict or at least heightened
scrutiny, which Defendants conduct cannot withstand.
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DECLARATORY AND INJUNCTIVE RELIEF

28 U.S.C. 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65
78.

79.
This case presents an actual controversy because Defendants present and ongoing
denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting
the issuance of a declaratory judgment.
80.
Plaintiffs seek injunctive relief to protect their constitutional rights and avoid the
injuries described above. A favorable decision enjoining Defendants would redress and prevent
the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate
remedy at law or in equity.
81.
The State will incur little to no burden in allowing same-sex couples to marry and
in recognizing the valid marriages of same-sex couples from other jurisdictions on the same terms
as different-sex couples, whereas the hardship for Plaintiffs of being denied equal treatment is
severe, subjecting them to an irreparable denial of their constitutional rights. The balance of
hardships thus tips strongly in favor of Plaintiffs.
VI.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

A.
Declaring that the provisions of and enforcement by Defendants of article 15,
section 16 of the Kansas Constitution, Kansas Statutes Annotated 23-2501 and 23-2508, and
any other sources of state law that exclude same-sex couples from marrying violate Plaintiffs
rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the
United States Constitution;
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B.
Permanently enjoining enforcement by Defendants of article 15, section 16 of the
Kansas Constitution, Kansas Statutes Annotated 23-2501 and 23-2508, and any other sources
of state law to exclude same-sex couples from marriage;
C.
Requiring Defendants in their official capacities to permit issuance of marriage
licenses to same-sex couples to marry, pursuant to the same restrictions and limitations
applicable to different-sex couples freedom to marry, and to recognize marriages validly entered
into by Plaintiffs;
D.
Awarding Plaintiffs their costs, expenses, and reasonable attorneys fees pursuant
to, inter alia, 42 U.S.C. 1988 and other applicable laws; and
E.
Granting such other and further relief as the Court deems just and proper.
F.
The declaratory and injunctive relief requested in this action is sought against
each Defendant; against each Defendants officers, employees, and agents; and against all
persons acting in active concert or participation with any Defendant, or under any Defendants
supervision, direction, or control.
DESIGNATION OF PLACE OF TRIAL
Plaintiffs designate Kansas City as the place of trial in this action.
/s/ Stephen Douglas Bonney
Stephen Douglas Bonney (#12322)
3601 Main Street
Kansas City, Missouri 64111
(816) 994-3311
(816) 756-0136-fax
dbonney@aclukswmo.org
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80 of 446
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Mark P. Johnson, KS Bar #22289

Denton US, LLP
4520 Main Street
Suite 1100
816/460-2400
816/531-7545 (fax)
Mark.johnson@dentons.com
Joshua A. Block [motion for pro hac vice to be
filed]
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
New York, NY 10004
(212) 549-2593
jblock@aclu.org
ATTORNEYS FOR PLAINTIFFS
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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, and
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.
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Case No. 14-cv-2518
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND

TEMPORARY RESTRAINING ORDER
Pursuant to Fed. R. Civ. P. 65(a) and (b), Plaintiffs move for a preliminary injunction and
temporary restraining order (1) enjoining Defendants and their officers, employees, and agents
from enforcing article 15, section 16 of the Kansas Constitution, Kansas Statutes Annotated
23-2501 and 23-2508, and any other sources of state law to exclude same-sex couples from marriage or to refuse recognition to the marriages of same-sex couples and (2) requiring Defendants
and their officers, employees, and agents in their official capacities to permit issuance of marriage licenses to same-sex couples, pursuant to the same restrictions and limitations applicable to
different-sex couples freedom to marry, and to recognize marriages validly entered into by
Plaintiffs.
Aplt. App. # 000035
82 of 446

Stephen Douglas Bonney, KS Bar No. 12322
3601 Main Street
Tel. (816) 994-3311
Fax: (816) 756-0136
Dentons US, LLP
4520 Main Street
Suite 1100
816/460-2400
816/531-7545 (fax)
filed]
UNION FOUNDATION
New York, NY 10004
(212) 549-2593
jblock@aclu.org
Certificate of Service
I certify that, on October 13, 2014, the foregoing document was served by e-mail on the
following: Jeffrey A. Chanay, Chief Deputy Attorney General for the State of Kansas,
jeff.chanay@ksag.org; Defendant Douglas A. Hamilton, Clerk of the Douglas County District
Court, dhamilton@douglas-county.com; and Defendant Bernie Lumbreras, Clerk of the Sedgwick County District Court, blumbrer@dc18.org.
2
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Document: 01019377512
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DITRANI,
Plaintiffs,
v.
ROBERT MOSER, M.D., in his official capacity as Secretary of the Kansas Department of
Health and Environment, and
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.
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Case No. 14-cv-2518
MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY

INJUNCTION AND TEMPORARY RESTRAINING ORDER
Introduction
This is a civil rights action for injunctive and declaratory relief seeking to declare unconstitutional and enjoin Defendants from enforcing Article 15, 16 of the Kansas Constitution, Kansas Statutes Annotated 23-2501 and 23-2508, and any other Kansas statute, law,
policy, or practice that excludes Plaintiffs and other same-sex couples from marriage. Simply put, A state may not deny the issuance of a marriage license to two persons, or refuse to
recognize their marriage, based solely upon the sex of the persons in the marriage union.
Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S.
Oct. 6, 2014).
Aplt. App. # 000037
84 of 446

In direct violation of the United States Constitution, the Kansas Constitution declares
that Marriage shall be constituted by one man and one woman only. All other marriages are
declared to be contrary to the public policy of this state and are void. KAN. CONST. art. 15,
16. See also Kan. Stat. Ann. 23-2501 and 23-2508. Pursuant to these laws, Defendants
are refusing to issue marriages licenses to same-sex couples based solely on the sex of the
persons they wish to marry.
The Tenth Circuit held in Kitchen and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014), that virtually identical marriage bans in Utah and Oklahoma violated the Fourteenth Amendment. But despite this binding precedent, Defendants have
indicated that they will continue to enforce Kansass unconstitutional marriage bans until a court
enjoins them from doing so. Plaintiffs accordingly seek a temporary restraining order and preliminary injunction to force Defendants to comply with the Fourteenth Amendment in conformance
with binding Tenth Circuit precedent.
Pursuant to Fed. R. Civ. P. 65(a) and (b), Plaintiffs have moved for a preliminary injunction and a temporary restraining order (1) enjoining Defendants and their officers, employees,
and agents from enforcing Article 15, 16 of the Kansas Constitution, Kansas Statutes Annotated 23-2501 and 23-2508, and any other sources of state law that preclude same-sex couples
from marriage and (2) requiring Defendants and their officers, employees, and agents in their
official capacities to permit issuance of marriage licenses to same-sex couples, pursuant to the
same restrictions and limitations applicable to different-sex couples freedom to marry, and to
recognize marriages validly entered into by Plaintiffs.
2
Aplt. App. # 000038
85 of 446

Facts
Plaintiffs are two same-sex couples who wish to marry in Kansas. See Declaration of Kail
Marie, 3; Declaration of Michelle L. Brown, 3; Declaration of Kerry Wilks, Ph.D., 3; and
Declaration of Donna DiTrani, 3. Plaintiffs meet all of the requirements Kansas imposes for
the issuance of a marriage license except that they want to marry a person of the same sex. Id., ,
4.
On October 8, 2014, Kail Marie appeared in person at the office of the Clerk of the Douglas County District Court, and submitted a fully executed application for a marriage license to a
deputy clerk. Declaration of Kail Marie, 5. On Thursday, October 9, 2014, Chief Judge Robert
W. Fairchild of the Seventh Judicial District issued Administrative Order 14-13, which states
that [t]he court performs an administrative function when it issues a marriage license and indicates that in exercising that administrative function it is bound to apply and follow existing Kansas laws. See Admin. Ord. 14-13 re Same-sex Marriage License Applications, available at
http://www.douglas-county.com/district_court/docs/pdf/adminorder_14-13.pdf. The Administrative Order concludes by saying that [t]he Clerk of the District Court shall not issue a marriage
license to these applicants or to any other applicants of the same sex. Id. Thus, it is clear that
Plaintiff Maries application for a marriage license will be denied because she seeks to marry a
woman, Plaintiff Michelle Brown.
On October 9, 2014, Plaintiffs Wilks and DiTrani submitted a fully executed application
for a marriage license to a deputy clerk at the office of the Clerk of the District Court for the 18th
Judicial District in Wichita, Kansas. Declaration of Kerry Wilks, Ph.D., 5; and Declaration of
Donna DiTrani, 5. At that point, the deputy clerk reading from a prepared statement told
Plaintiffs Wilks and DiTrani that their application for a marriage license was denied because
3
Aplt. App. # 000039
86 of 446

same-sex marriages violate provisions of the Kansas Constitution and that the office of the District Court Clerk for the 18th Judicial District will not issue marriage licenses to same-sex couples
until a court rules otherwise. Id.
Argument
On June 25, 2014, the Tenth Circuit held that state laws that treat same-sex couples differently from opposite-sex couples for purposes of marriage violate the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution. Kitchen, 755
F.3d at 1229-30. Although Kitchen concerned the laws and practices of the State of Utah, the
Tenth Circuit was explicit that its holding applied not only to the Utah law in question, but also
to similar statutory enactments, such as the Kansas laws at issue in this case. Id. at 1230. On
July 18, 2014, the Tenth Circuit likewise held that Oklahomas prohibition of marriage for samesex couples violated the principles of due process and equal protection, concluding that states
may not, consistent with the United States Constitution, prohibit same-sex marriages. Bishop,
760 F.3d at 1082.
The state defendants in both Kitchen and Bishop filed petitions for writs of certiorari in
the United States Supreme Court. On October 6, 2014, the United States Supreme Court denied
both petitions, along with petitions seeking to overturn similar decisions by the Fourth and Seventh Circuits. See Rainey v. Bostic, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014); Bogan v. Baskin, 83
U.S.L.W. 3127 (U.S. Oct. 6, 2014). The Tenth Circuit issued its mandate in both Kitchen and
Bishop the same day. See Kitchen v. Herbert, 2014 WL 4960471 (10th Cir. Oct. 6, 2014); Bishop
v. Smith, 2014 WL 4960523 (10th Cir. Oct. 6, 2014). The Tenth Circuits holding that under the
Due Process and Equal Protection Clauses of the United States Constitution, those who wish to
marry a person of the same sex are entitled to exercise the same fundamental right as is recog4
Aplt. App. # 000040
87 of 446

nized for persons who wish to marry a person of the opposite sex, is now the law of the land in
Kansas. Kitchen, 755 F.3d at 1229-30.
Despite this binding precedent, Defendants Hamilton and Lumbreras refuse to issue marriage licenses to otherwise-qualified same-sex couples in Douglas and Sedgwick Counties without direction from the courts. Other county clerks also are awaiting instruction from the courts
before issuing marriage licenses to same-sex couples. See, e.g., Same-sex Marriage in Limbo in
Kansas All but one of 105 counties refusing to issue marriage licenses (Heather Hollingsworth,
Associated Press, Oct. 9, 2014), http://cjonline.com/news/2014-10-09/same-sex-marriage-limbokansas. In addition, on Friday, October 10, 2014, Kansas Attorney General Derek Schmidt filed
a petition with the Kansas Supreme Court seeking a writ of mandamus to stop the Johnson County District Court from issuing marriage licenses to same-sex couples. Petition for Writ of Mandamus, State of Kansas ex rel. Schmidt v. Moriarty, Case No. 112,590 (Kan., filed Oct. 10, 2014)
available at http://www.kscourts.org/State_v_Moriarty/State%20v%20Moriarty%20Petition.pdf.
That same day, the Kansas Supreme Court granted a temporary stay of the Johnson County District Courts Administrative Order 14-11, which had instructed the district court clerks office to
allow same-sex couples to apply for marriage licenses and to obtain such licenses if otherwise
qualified under Kansas law. State of Kansas ex rel. Schmidt v. Moriarty, Case No. 112,590
(Kan., filed Oct. 10, 2014) available at http://www.kscourts.org/State_v_Moriarty/112590.pdf.
The Kansas Supreme Court also established a briefing schedule and set a hearing for November
6, 2014. Id.
Plaintiffs seek a preliminary injunction and temporary restraining order requiring the Defendants to allow same-sex couples to marry and to issue marriage licenses to otherwisequalified same-sex couples. A movant is entitled to a preliminary injunction if the movant can
5
Aplt. App. # 000041
88 of 446

establish the following: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the
movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir.
2012). For injunctions seeking mandatory relief, the movant must make a strong showing with
regard to the likelihood of success on the merits and with regard to the balance of harms. Id. In
light of binding precedent from Kitchen and Bishop, Plaintiffs easily meet these requirements.
I.
Plaintiffs Have Made a Strong Showing They Are Substantially Likely To Succeed On The
Merits.
State laws . . . regulating marriage, of course, must respect the constitutional rights of
persons. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013). Plaintiffs request for
injunctive relief seeks from the Court only what Kitchen expressly holds: A state may not deny
the issuance of a marriage license to two persons, or refuse to recognize their marriage, based
solely upon the sex of the persons in the marriage union. Kitchen, 755 F.3d at 1199. The Tenth
Circuits decision is binding on this Court. See United States v. Spedalieri, 910 F.2d 707, 709 n.2
(10thCir. 1990) (A district court must follow the precedent of this circuit); Phillips v. Moore,
164 F. Supp. 2d 1245, 1258 (D. Kan. 2001) (The [district] court, of course, is bound by circuit
precedent) (citing Spedalieri).
In light of Kitchen and Bishop, the outcome of this case is a foregone conclusion. Because the Kansas laws and practices in question have virtually identical scopes and effects to
those overturned in Kitchen, the Kansas provisions are also unconstitutional. See Kitchen, 755
F.3d at 1230 (holding that both state constitutional amendments and similar statutory enactments limiting marriage to opposite-sex couples violate the Equal Protection and Due Process
6
Aplt. App. # 000042
89 of 446

Clauses). As was also true of the Oklahoma marriage ban struck down by the Tenth Circuit, in
this case the Courts merits disposition is governed by [the] ruling in Kitchen. Bishop, 760
F.3d at 1074. Because Kansass statutory definition of marriage and refusal to recognize the
valid marriages of same-sex couples do precisely what the Tenth Circuit held to be unconstitutional, there is an overwhelming probability that Plaintiffs will prevail on the merits.
II.
Plaintiffs Will Suffer Irreparable Harm If A Preliminary Injunction Does Not Issue.
There is no question that Plaintiffs suffer irreparable harm every day that Kansass un-
constitutional marriage bans remain in force. Deprivation of constitutional rights for even minimal periods of time, unquestionably constitutes irreparable harm. Elrod v. Burns, 427 U.S.
347, 373 (1976); see also Awad, 670 F.3d at 1131 (Furthermore, when an alleged constitutional
right is involved, most courts hold that no further showing of irreparable injury is necessary.)
(citation omitted); Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) ([W]hen reviewing a
motion for preliminary injunction, if it is found that a constitutional right is being threatened or
impaired, a finding of irreparable injury is mandated.); Quinly v. City of Prairie Village, 446
F.Supp.2d 1233, 1237-38 (D. Kan. 2006) (same).
Aside from the unquestionable irreparable harm suffered by Plaintiffs due to the Defendants refusal to allow Plaintiffs to enjoy the fundamental right to marry their partners, Kansass
treatment of Plaintiffs relationships as lesser than the relationships of opposite-sex couples who
are married or want to become married stigmatizes and demeans them, causes them anxiety and
stress, and harms their dignity as individuals and as couples. As recognized by the Tenth Circuit,
laws that treat same-sex couples as lesser than opposite-sex couples for purposes of marriage
impose[] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex
marriages. Kitchen, 755 F.3d at 1207 (quoting Windsor, 133 S. Ct. at 2963). Laws that discrim7
Aplt. App. # 000043
90 of 446

inate against same-sex couples undermine both the public and private significance of same-sex
couples relationships by telling those couples, and all the world, that their marriages are unworthy of recognition. Kitchen, 755 F.3d at 1207 (quoting Windsor, 133 S. Ct. at 2964). Such laws
humiliate[] tens of thousands of children now being raised by same-sex couples by making it
even more difficult for the children to understand the integrity and closeness of their own family
and its concord with other families in their community and in their daily lives. Kitchen, 755
F.3d at 1207 (quoting Windsor, 133 S. Ct. at 2964). With the passage of each day, these harms
accumulate. The United States Supreme Court has long recognized that marriage is the most
important relation in life. Kitchen, 755 F.3d at 1209 (quoting Maynard v. Hill, 125 U.S. 190,
205 (1888)). The harms to Plaintiffs dignity that result from being deprived of this most important relation should be considered particularly irreparable because they cannot be adequately
compensated for in the form of monetary damages. See Awad, 670 F.3d at 1131; Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1251 (10th Cir. 2001). To continue to deny Plaintiffs the enjoyment and benefits of one of the most important liberties in life is to continue to irreparably harm them.
III.
The Harm To Plaintiffs Substantially Outweighs Any Harm To The Defendants.

The balance of harms tips decidedly in favor of Plaintiffs. Under binding Tenth Circuit
precedent Kansass marriage bans are unconstitutional, and it is well established that when a
law is likely unconstitutional, the interests of those the government represents, such as voters do
not outweigh a plaintiffs interest in having its constitutional rights protected. Hobby Lobby
Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality) (quoting
Awad, 670 F.3d at 1131), affd, 134 S. Ct. 2751 (2014). Thus, if the moving party establishes a
likelihood of success on the merits, the balance of harms normally favors granting preliminary
8
Aplt. App. # 000044
91 of 446

injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional. ACLU of Ill. v. Alvarez, 679 F.3d 583,
58990 (7th Cir. 2012). See also Quinly, 446 F.Supp.2d at 1237 (quoting Alvarez).
Before the Supreme Court denied petitions for certiorari in Kitchen, Bishop, and similar
cases from the Fourth and Seventh Circuits, some courts had denied preliminary relief or stayed
enforcement of injunctions to prevent confusion that would ostensibly result if a state were
forced to allow same-sex couples to marry pursuant to a lower court judgment that was subsequently reversed on appeal, Kitchen, 755 F.3d at 1230 (staying mandate pending disposition of
petition for certiorari). But the Supreme Courts decision on October 6 to deny certiorari and
allow the lower courts judgments to go into effect demonstrates that such stays are no longer
warranted. If the Supreme Court merely wanted to delay review until a circuit split arises, the
Supreme Court could have simply held the petitions and not taken any action on them until it
was prepared to grant certiorari in a case raising this issue. Instead, the Supreme Court denied
review outright, sending a strong signal that any remaining doubt about the Supreme Courts ultimate resolution of the legal issue does not justify continuing to deny same-sex couples the freedom to marry.
IV.
Injunctive Relief Is In The Public Interest.

[I]t is always in the public interest to prevent the violation of a partys constitutional
rights. Hobby Lobby, 723 F.3d at 1145 (quoting Awad, 670 F.3d at 1131-32). While the public
has an interest in the will of the voters being carried out . . . the public has a more profound and
long-term interest in upholding an individuals constitutional rights. Awad, 670 F.3d at 1132.
Accordingly, the relief requested serves the interest of the Plaintiffs, the Defendants and other
district court clerks, and the People of Kansas.
9
Aplt. App. # 000045
92 of 446

V.
A Temporary Restraining Order Is Warranted In This Case.

A party who is entitled to injunctive relief may also seek a temporary restraining order
upon a summary showing of immediate and irreparable injury. Given the constitutional magnitude of the issues at stake for the Plaintiffs in this case, the irreparable nature of the injuries to
the Plaintiffs, and the high likelihood of success on the merits, Plaintiffs respectfully request that
the Court issue a temporary restraining order, for the maximum allowable time period under Fed.
R. Civ. P. 65, requiring Defendants to issue or permit issuance of marriage licenses to same-sex
couples, including the Plaintiffs, pursuant to the same restrictions and limitations applicable to
opposite-sex couples, and without regard to the gender or sexual-orientation of the applicants.
CONCLUSION
Plaintiffs are overwhelmingly likely to succeed on the merits of their constitutional
claims and are suffering significant and irreparable harm every day that Kansas excludes them
from marriage. The balance of equities strongly favors an injunction, and an injunction is in the
public interest. Accordingly, Plaintiffs respectfully request that the Court issue a preliminary injunction: (1) enjoining Defendants and their officers, employees, and agents from enforcing article 15, 16 of the Kansas Constitution, Kansas Statutes Annotated 23-2501 and 23-2508, and
any other sources of state law to exclude same-sex couples from marriage, and (2) requiring Defendants and their officers, employees, and agents in their official capacities to permit issuance
of marriage licenses to same-sex couples, pursuant to the same restrictions and limitations applicable to different-sex couples freedom to marry, and to recognize marriages validly entered into
by Plaintiffs.
10
Aplt. App. # 000046
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Plaintiffs request such injunction remain in effect until entry of final judgment in this action. Plaintiffs further request a temporary restraining order as set forth above.
3601 Main Street
Tel. (816) 994-3311
Fax: (816) 756-0136
Dentons US, LLP
4520 Main Street
Suite 1100
816/460-2400
816/531-7545 (fax)
filed]
UNION FOUNDATION
New York, NY 10004
(212) 549-2593
jblock@aclu.org
jeff.chanay@ksag.org; Defendant Douglas A. Hamilton, Clerk of the Douglas County District
Court, dhamilton@douglas-county.com; and Defendant Bernie Lumbreras, Clerk of the Sedgwick County District Court, blumbrer@dc18.org.
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Case 2:14-cv-02518-DDC-TJJ Document 4-1 Filed 10/13/14 Page 1 of 2

DITRANI,
Plaintiffs,
v.
Defendants.
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Case No. 14-cv-2518
DECLARATION OF KAIL MARIE

1.
I, Kail Marie, am one of the Plaintiffs in this action. I have personal knowledge
of the matters stated in this Declaration and could and would competently testify to these facts.
2.
I currently live in Lecompton, Kansas, which is in Douglas County. I live there
with my life partner, Michelle L. Brown, with whom I have been in a committed relationship for
twenty years.
3.
I want to marry Michelle, but my desire to marry has been denied because the
laws of the State of Kansas prohibit us and other same-sex couples from marrying.
4.
Except for the fact that Michelle and I are both women, we meet all of the
qualifications for marriage in Kansas. Specifically, we are both over the age of 18, we are not
related by blood, and neither of us is currently married to another person.
Aplt. App. # 000048
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5.
On October 8, 2014, I appeared in person at the office of the Clerk of the Douglas
County District Court to apply for a marriage license so that Michelle and I could get married.
When I asked for an application, the deputy clerk verbally asked me for Michelle's and my
personal information, as well as for my ID. The clerk then wrote the information down on a
form and then asked me to sign the form, which required me to verify the information was true
and correct. The clerk then gave me the worksheet to take home and told me not to bring it back
before Monday, October 13, after the statutory three day waiting period required for the issuance
of a marriage license in Kansas.
I declare under penalty of perjury that the foregoing statements, including all statements
in this Declaration, are true and correct.
Executed on October13, 2014.
/s/ Kail Marie

Kail Marie
2
Aplt. App. # 000049
96 of 446


DITRANI,
Plaintiffs,
v.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-cv-2518
DECLARATION OF MICHELLE L. BROWN

1.
I, Michelle L. Brown, am one of the Plaintiffs in this action. I have personal
knowledge of the matters stated in this Declaration and could and would competently testify to
these facts.
2.
I currently live in Lecompton, Kansas, which is in Douglas County. I live there
with my life partner, Kail Marie, with whom I have been in a committed relationship for twenty
years.
3.
I want to marry Kail, but my desire to marry has been denied because the laws of
the State of Kansas prohibit us and other same-sex couples from marrying.
4.
Except for the fact that Kail and I are both women, we meet all of the
Aplt. App. # 000050
97 of 446

Executed on October 13, 2014.
/s/ Michelle L. Brown

Michelle L. Brown
2
Aplt. App. # 000051
98 of 446


DITRANI,
Plaintiffs,
v.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-cv-2518
DECLARATION OF KERRY WILKS

1.
I, Kerry Wilks, Ph.D., am one of the Plaintiffs in this action. I have personal
these facts.
2.
I currently live in Wichita, Kansas, which is in Sedgwick County. I live there
with my life partner, Donna DiTrani, with whom I have been in a committed relationship for
almost five years.
3.
I want to marry Donna, but my desire to marry has been denied because the laws
of the State of Kansas prohibit us and other same-sex couples from marrying.
4.
Except for the fact that Donna and I are both women, we meet all of the
Aplt. App. # 000052
99 of 446

5.
On October 9, 2014, Donna and I appeared in person at the office of the Clerk of
the Sedgwick County District Court with the express purpose of applying for a marriage license
so that we could get married. A deputy clerk asked us for our names and other pertinent
information and filled out an application for a marriage license for us, which signed under oath
before a deputy clerk. We then gave the deputy clerk the fully executed application for a
marriage license. The clerk indicated that we should sit down and after approximately two
minutes, a new deputy clerk called us forward and reading from a prepared statement
informed us that our application for a marriage license was denied because same-sex marriages
violate provisions of the Kansas Constitution and that the office of the District Court Clerk for
the 18th Judicial District will not issue marriage licenses to same-sex couples until the Supreme
Court otherwise rules differently.
/s/ Kerry Wilks_____

Kerry Wilks, Ph.D.
2
Aplt. App. # 000053
100 of 446


DITRANI,
Plaintiffs,
v.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-cv-2518
DECLARATION OF DONNA DITRANI

1.
I, Donna DiTrani, am one of the Plaintiffs in this action. I have personal
these facts.
2.
I currently live in Wichita, Kansas, which is in Sedgwick County. I live there
with my life partner, Kerry Wilks, with whom I have been in a committed relationship for five
years.
3.
I want to marry Kerry, but my desire to marry has been denied because the laws
of the State of Kansas prohibit us and other same-sex couples from marrying.
4.
Except for the fact that Kerry and I are both women, we meet all of the
Aplt. App. # 000054
101 of 446

5.
On October 9, 2014, Kerry and I appeared in person at the office of the Clerk of
the Sedgwick County District Court to apply for a marriage license so that we could get married.
A deputy clerk filled out the application form and we signed it under oath before a deputy clerk.
At that point, the deputy clerk reading from a prepared statement told us that our application
for a marriage license was denied because same-sex marriages violate provisions of the Kansas
Constitution and that the office of the District Court Clerk for the 18th Judicial District will not
issue marriage licenses to same-sex couples until the Supreme Court otherwise rules
differently.
/s/ Donna DiTrani

Donna DiTrani
2
Aplt. App. # 000055
102 of 446
Document: 01019377512
Page: 60

Kail Marie, et al.,
Plaintiffs,
v.
Robert Moser, M.D., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 14-cv-2518-DDC-TJJ
PLAINTIFFS MEMORANDUM OF LAW REGARDING ABSTENTION

The Court requested briefing on possible abstention issues in this case, presumably
because of the filing and pendency of the mandamus petition before the Kansas Supreme Court.
See State of Kansas ex rel. Schmidt v. Moriarty, Case No. 112,590 (Kan., filed Oct. 10, 2014),
available at http://www.kscourts.org/State_v_Moriarty/112590.pdf.1 The Court specifically
mentioned abstention under Railroad Commn v. Pullman Co., 312 U.S. 496 (1941) (Pullman
abstention) and under Younger v. Harris, 401 U.S. 37 (1971) (Younger abstention). Plaintiffs
brief will treat those two abstention doctrines as well as abstention under Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (Colorado River).
In the main, federal courts are obliged to decide cases within the scope of federal
jurisdiction. Abstention is not in order simply because a pending state-court proceeding involves
the same subject matter. Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013).
The Kansas Supreme Court noted, in its Order dated October 10, 2014, that the Attorney
Generals right to relief on the merits is not clear, nor is it apparent per the Rule that no valid
defense to the petition can be offered, given the Tenth Circuits decisions in Kitchen v. Herbert,
755 F.3d 1193, 1199 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014), and Bishop
v. Smith, 760 F.3d 1070 (10th Cir.), cert denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014). See
Order, available at http://www.kscourts.org/State_v_Moriarty/112590.pdf.
Aplt. App. # 000056
103 of 446
Document: 01019377512
Page: 61
[T]here is no doctrine that the availability or even the pendency of state judicial proceedings
excludes the federal courts. New Orleans Public Service, Inc. v. Council of City of New
Orleans, 491 U.S. 350, 373 (1989) (hereafter NOPSI). Abstention under any doctrine is the
exception, not the rule. See Colorado River, 424 U.S. at 813; NOPSI, 491 U.S. at 368.
Accordingly, every federal court in the past year that has been asked to abstain from
adjudicating the constitutionality of state laws excluding same-sex couples from marriage has
rejected the request, See Guzzo v. Mead, 2:14-cv-0020, ECF #44, at 7-9 (D. Wyo. Oct. 17, 2014)
(rejecting abstention) (copy attached at Doc. 7-1); Burns v. Hickenlooper, No. 14cv01817
RMKLM, 2014 WL 3634834, at *5 n.3 (D. Colo., July 23, 2014); Wolf v. Walker, No. 14cv
64bbc, 2014 WL 1207514 (W.D. Wis. Mar. 24, 2014); McGee v. Cole, 993 F. Supp. 2d 639,
646 (S.D. W. Va. 2014). Plaintiffs respectfully ask this Court to do the same.
Pullman Abstention
Under Pullman, federal courts should abstain from decision when difficult and unsettled
questions of state law must be resolved before a substantial federal constitutional question can be
decided. . . . Pullman abstention is limited to uncertain questions of state law because
[a]bstention from the exercise of federal jurisdiction is the exception, not the rule. Hawaii
Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984), quoting from Colorado River, 424 U.S. at
813. Where there is no ambiguity in the state statute, the federal court should not abstain but
should proceed to decide the federal constitutional claim. We would negate the history of the
enlargement of the jurisdiction of the federal district courts, if we held the federal court should
2
Aplt. App. # 000057
104 of 446
Document: 01019377512
Page: 62
stay its hand and not decide the question before the state courts decided it. Wisconsin v.
Constantineau, 400 US 433, 439 (1971) (citation and footnote omitted).
The Tenth Circuit has held that, [u]nder Pullman abstention, a district court should
abstain if three conditions are satisfied: (1) an uncertain issue of state law underlies the federal
constitutional claim; (2) the state issues are amenable to interpretation and such an interpretation
obviates the need for or substantially narrows the scope of the constitutional claim; and (3) an
incorrect decision of state law by the district court would hinder important state law policies.
Lehman v. City of Louisville, 967 F. 2d 1474, 1478 (10th Cir. 1992). The fact that a case
pending in state court could have some impact on the issues pending in federal court is
insufficient to trigger Pullman abstention. Petrella v. Brownback, 980 F. Supp. 2d 1293, 1298-99
(D. Kan. 2013) (rejecting Pullman abstention where case involved no unsettled question of state
law that should first be addressed by the state courts).
In this case, the meaning of the challenged state constitutional and statutory provisions is
absolutely clear. The challenged laws unequivocally prohibit plaintiffs and other same-sex
couples from obtaining a marriage license and marrying a person of the same sex in Kansas. See
Kan. Const. art. 15, 16; Kan. Stat. Ann. 23-2501 and 23-2508. Thus, because this case
involves no uncertain issue of state law, Pullman abstention would be inappropriate. Lehman,
967 F.2d at 1478.
Younger Abstention
A unanimous Supreme Court in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584,
(2013), recently declared in emphatic terms that Younger abstention is strictly limited to criminal
3
Aplt. App. # 000058
105 of 446
Document: 01019377512
Page: 63
or quasi-criminal contexts and does not extend to all parallel state and federal proceedings
involving an important state interest. Id. at 593.
In Younger, plaintiff asked a federal court to enjoin enforcement of the allegedly
unconstitutional California Criminal Syndicalism Act despite the fact that plaintiff was then a
defendant in a state court prosecution under that law. The Court held that lower federal courts
should decline to enjoin state criminal prosecutions absent a showing of bad faith, harassment,
or any other unusual circumstance that would call for equitable relief. Younger, 401 U.S. at 54.
A few years later, the Court extended Younger to bar federal injunctive relief in a state [civil]
proceeding which in important respects is more akin to a criminal prosecution than are most civil
cases. Huffman v. Pursue, Ltd., 420 US 592, 604 (1975).2 Finally, the Court held that Younger
abstention applies to civil proceedings involving certain orders ... uniquely in furtherance of the
state courts ability to perform their judicial functions. NOPSI, 491 U.S. at 368 (citing Juidice v.
Vail, 430 U.S. 327, 336, n. 12 (1977) (civil contempt order), and Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 13 (1987) (state appeal bond requirement)). In NOPSI, however, the Court made
clear that only exceptional circumstances justify a federal courts refusal to decide a case in
deference to the States under Younger. 491 U.S. at 368. In Sprint Communications, Inc. v.
Jacobs, moreover, the Court expressly held that Younger extends to the three exceptional
circumstances identified in NOPSI, but no further. 134 S. Ct. at 594.
Cases falling into this category include state bar disciplinary proceedings and other state law
civil enforcement proceedings. See NOPSI, 134 S. Ct. at 592 (collecting cases).
4
Aplt. App. # 000059
106 of 446
Document: 01019377512
Page: 64
Plaintiffs case in this Court does not present any of the three exceptional
circumstances identified in NOPSI. Specifically, there is no pending criminal or quasi-criminal
civil enforcement case pending in state court; nor are plaintiffs seeking to enjoin any such state
court case. Furthermore, the present federal case does not purport to interfere with any civil
proceedings involving certain orders ... uniquely in furtherance of the state courts ability to
perform their judicial functions, such as a judicial contempt order or a state appeal bond
requirement. NOPSI, 491 U.S. at 368.
Sprint makes crystal clear that because this case does not fall within one of three
exceptional categories in NOPSI, abstention is not permissible.
Colorado River Doctrine
The Tenth Circuit has said the Colorado River Doctrine springs from the desire for
judicial economy, rather than from constitutional concerns about federal-state
comity. Rienhardt v. Kelly, 164 F.3d 1296, 1303 (10th Cir. 1999). Colorado River presented
the Court with a case involving a federal suit to determine water rights along the Colorado River.
While the federal case was being litigated, the parties were also litigating a parallel case in a state
court. After concluding that this case falls within none of the abstention categories, including
Pullman and Younger abstention, the Court considered whether there are principles unrelated to
considerations of proper constitutional adjudication and regard for federal-state relations which
govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either
by federal courts or by state and federal courts. 424 U.S. at 817. Ultimately, the Court
concluded that the circumstances permitting the dismissal of a federal suit due to the presence
5
Aplt. App. # 000060
107 of 446
Document: 01019377512
Page: 65
of a concurrent state proceeding for reasons of wise judicial administration are considerably
more limited than the circumstances appropriate for abstention. Id. at 818. As part of the
Colorado River analysis, the Court mentioned the following factors: the inconvenience of the
federal forum, the desirability of avoiding piecemeal litigation, and the order in which
jurisdiction was obtained by the concurrent forums; and it noted that [n]o one factor is
necessarily determinative; a carefully considered judgment taking into account both the
obligation to exercise jurisdiction and the combination of factors counselling against that
exercise of jurisdiction is required. Only the clearest of justifications will warrant dismissal.
424 U.S. at 818-820 (citations omitted).
Here, there is no judicial economy concern because binding Tenth Circuit precedent
dictates the result in this case. Moreover, concerns about interfering with state proceedings are
dealt with under Younger abstention, which as noted above does not apply in this case. In
fact, by applying controlling circuit precedent and declaring the challenged provisions of the
Kansas Constitution and statutes unconstitutional, the Court here would be rendering assistance
to the Kansas Supreme Court, which will not have to address whether federal precedent from the
Tenth Circuit is binding in state courts. This courts straightforward application of binding
circuit precedent advances judicial economy instead of hindering it.
In addition, the mandamus case and this lawsuit are not parallel proceedings for purposes
of Colorado River because the cases involve different parties and different claims.3 The
Suits are parallel if substantially the same parties litigate substantially the same issues in
different forums. Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir.1994).
6
Aplt. App. # 000061
108 of 446
Document: 01019377512
Page: 66
mandamus case is between two governmental officials, the Kansas Attorney General as
petitioner against the Chief Judge of the Johnson County District Court and the clerk of that
court as respondents. The plaintiffs here are not involved in the mandamus case in any
way. Moreover, the mandamus case aims to prohibit the respondents from accepting
applications and issuing marriage licenses in defiance of the Kansas laws that clearly limit
marriage to one man and one woman. Not only does the mandamus case have nothing to do
with issuance of marriage licenses in Douglas and Sedgwick Counties where plaintiffs seek to
obtain licenses but the state forum offers no protection for plaintiffs rights. Cf. Wolf, 2014
WL 1207514, at *5 (Plaintiffs have the right under 42 U.S.C. 1983 to bring a lawsuit to
vindicate their own constitutional rights.).
Finally, the fact that this case presents a federal constitutional question dictated by federal
precedent strongly weighs in favor of exercising jurisdiction. See Moses H. Cone Mem. Hosp. v.
Mercury Const., 460 U.S. 1, 26 (1983) ([T]he presence of federal-law issues must always be a
major consideration weighing against surrender of jurisdiction under Colorado River); Burns,
2014 WL 3634834, at *5 n.3 (This Court declines to abstain from deciding, and thus to defer to
the state, matters of federal constitutional law.).
Conclusion
None of the abstention doctrines apply to this case. As the Supreme Court noted only last
term,
Federal courts, it was early and famously said, have no more right to
decline the exercise of jurisdiction which is given, than to usurp that
which is not given. Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed.
257 (1821). Jurisdiction existing, this Court has cautioned, a federal
7
Aplt. App. # 000062
109 of 446
Document: 01019377512
Page: 67
courts obligation to hear and decide a case is virtually unflagging.

Parallel state-court proceedings do not detract from that obligation.
Sprint Communications, 134 S. Ct. at 591-92 (citation omitted). Given the fast pace of
developments in similar cases around the country since the Supreme Court denied certiorari in
Kitchen, Bishop, and the other marriage equality cases on October 6, 2014, plaintiffs respectfully
urge the Court to exercise its jurisdiction over this case and to enter a preliminary injunction
against the challenged Kansas laws prohibiting same-sex marriage consistent with the controlling
circuit precedent.
Against the backdrop of binding circuit precedent, abstention would cause extreme
prejudice to Plaintiffs by delaying them from vindicating constitutional rights that have already
been clearly established and declared by the Tenth Circuit. In the two weeks since the Supreme
Court denied petitions for certiorari in other marriage equality cases, the Ninth Circuit has joined
the Fourth, Seventh, and Tenth Circuits in holding that state laws excluding same-sex couples
from marrying violate the Fourteenth Amendment. Latta v. Otter, Nos. 1435420, 1435421,
1217668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014). Every district court within those four
circuits has rejected attempts by other states to argue that the circuits binding precedent is
somehow distinguishable from the marriage bans at issue in their own states. See See Guzzo v.
Mead, 2:14-cv-0020, ECF #44, at 7-9 (D. Wyo. Oct. 17, 2014) (Wyoming); Majors v. Horne, --F. Supp. 3d ----, 2014 WL 5286743 (D. Ariz. Oct 17, 2014) (Arizona); Fisher-Borne v. Smith,
--- F.Supp.3d ----, 2014 WL 5138922 (M.D.N.C., Oct. 14, 2014) (North Carolina); Hamby v.
Parnell, --- F.Supp.3d ----, 2014 WL 5089399 (D. Alaska, Oct. 12, 2014) (Alaska); General
Synod of the United Church of Christ v. Resinger, --- F. Supp. 3d ----, 2014 WL 5092288,
8
Aplt. App. # 000063
110 of 446
Document: 01019377512
Page: 68
(W.D.N.C. Oct. 10, 2014). Similarly, the Supreme Court has rejected all requests by states for a
stay of lower court injunctions. See Otter v. Latta, No. 14A374 (U.S. Oct 10, 2014) (denying
stay request from Idaho); Parnell v. Hamby, No. 14A413 (U.S. Oct 17, 2014) (denying stay
request from Alaska).
Plaintiffs respectfully request that this Court rule now to bring Kansas into line with
binding circuit precedent. Plaintiffs should not be prevented from vindicating their Fourteenth
Amendment rights while Kansas state officials engage in a futile exercise to delay the inevitable.
3601 Main Street
Tel. (816) 994-3311
Fax: (816) 756-0136
Dentons US, LLP
4520 Main Street
Suite 1100
816/460-2400
816/531-7545 (fax)
Joshua A. Block [motion for pro hac vice pending]
UNION FOUNDATION
New York, NY 10004
(212) 549-2593
jblock@aclu.org
9
Aplt. App. # 000064
111 of 446
Document: 01019377512
Page: 69
jeff.chanay@ksag.org; Steve R. Fabert, Asst. Attorney General, Steve.Fabert@ag.ks.gov, attorney for
Defendant Moser, and M.J. Willoughby, Asst. Attorney General, MJ.Willoughby@ag.ks.gov,
attorney for defendants Hamilton and Lumbreras.
10
Aplt. App. # 000065
112 of 446
Document: 01019377512
Page: 70

Case 2:14-cv-00200-SWS Document 45 Filed 10/17/14 Page 1 of 2
U.S. :
- court
DISTRICT OF WYOMING
Mark T. Voss, Wyo. St. Bar No. 6-2897

Bernard P. Haggerty, Wyo. St. Bar No. 6-2679
Laramie County Attorney's Office
m OCT 17
PF1 2 M5
STEPHAN :
RIS, CLERK
CHEYENNE
310 West 19th Street, Suite 320

Cheyenne, WY 82001
307-633-4370; 307-633-4329 (fax)
mvoss@laramiecounty.com
bemardh@laramiecounty.com
Attorneys for Defendant
Debra K. Lathrop, Laramie County Clerk
UNITED STATES DISTRICT COURT

DISTRICT OF WYOMING
Anne Marie Guzzo and Bonnie Robinson;

Ivan Williams and Charles Killion;
Brie Barth and Shelly Montgomery;

Carl Oleson and Rob Johnston;
and Wyoming Equality,
Plaintiffs,
Case No. 14-cv-00200-SWS
v.
Matthew H. Mead, in his official capacity

as the Governor of Wyoming; Dean Fausset, in his official
capacity as Director of the Wyoming Department of
Administration and Information; Dave Urquidez, in his
official capacity as Administrator of the State of Wyoming
Human Resources Division; and Debra K. Lathrop, in her
official capacity as Laramie County Clerk,
Defendants,
NOTICE OF DEFENDANT DEBRA K. LATHROP, LARAMIE COUNTY CLERK
The Defendant Clerk notifies the Court and the parties that she will not appeal the
preliminary injunction [Doc. 44] to the United States Court of Appeals for the Tenth Circuit.
Aplt. App. # 000066
113 of 446
Document: 01019377512
Page: 71

Case 2:14-cv-00200-SWS Document 45 Filed 10/17/14 Page 2 of 2
Aplt. App. # 000067
114 of 446


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 and
)
)
)
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. )
RESPONSE OF DEFENDANT MOSER IN OPPOSITION TO PLAINTIFFS MOTION

FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTON
The Court should deny plaintiffs motion for a temporary restraining order or preliminary
injunction. Injunctive relief directed at these defendants will not redress plaintiffs grievances,
which cannot be avoided by performance of a licensed marriage ceremony that Kansas officials
are required to ignore. Because Kansas law considers same-sex marriages to be legally void and
unenforceable only a final judgment binding on all Kansas officials can provide plaintiffs with
anything more than the appearance of marriage. The relief requested against Defendants Hamilton
and Lumbreras is beyond the Courts subject matter jurisdiction because it is sought against state
judicial officers, who are exempt from preliminary injunctive relief under the plain language of 42
U.S.C. 1983, Buchheit v. Green, 705 F.3d 1157 (10th Cir. 2012), and Knox v. Bland, 632 F.3d
1290 (10th Cir. 2011).
1
Aplt. App. # 000068
115 of 446

There is not even a remote possibility of success on the merits on plaintiffs claim for relief
against Kansas Department of Health and Environment Secretary Moser, whose sole involvement
in the process of solemnizing marriage is to provide license forms and to oversee collection of
statistics relating to marriages once they have been performed. No case anywhere in the country,
state or federal, has held, implied, or suggested that the use of the terms bride and groom on
marriage licenses violates constitutional rights. Plaintiffs cite no such case.
Plaintiffs lack standing to sue Secretary Moser, who is not a proper party defendant in this
lawsuit under the analysis followed in Bishop v. Oklahoma, 333 Fed. Appx. 361, 2009 WL
1566802 (10th Cir. 2009) and Bishop v. Smith, 760 F.3d 1070 (2014). As an executive officer
appointed as per K.S.A. 2014 Supp. 75-5601, Secretary Moser has no supervisory authority over
the judicial officials who would be called upon in appropriate cases to enforce the asserted rights
of same-sex couples. As the records custodian for marriage certificates, he has insufficient
involvement in the issuance of marriage licenses to be a defendant amenable to suit under the
Eleventh Amendment. See Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) and American
Tradition Institute v. Colorado, 876 F.Supp.2d 1222 (10th Cir. 2012). Judicial officers are not
employees, agents, or subordinates of the Kansas Department of Health and Environment, an
executive agency, but rather are part of the Kansas Judicial Branch and subject to its supervision
and control.
Every federal court that has either granted a preliminary injunction or a judgment on the
merits in a same-sex marriage case has stayed the effect of that decision to permit exhaustion of
appeal rights. The standard for granting a stay to permit an appeal to proceed is substantially the
same as the standard for denying a preliminary injunction outright. No purpose is served by
2
Aplt. App. # 000069
116 of 446

nominally granting a preliminary injunction that is then given no effect, other than the procedural
delay inherent in the process of appealing from the injunction.
Federal courts are courts of limited jurisdiction. The United States Supreme Court
reminded all federal courts in United States v. Windsor, __U.S.__, 133 S. Ct. 2675, 186 L. Ed. 2d
808 (2013) that the states have exclusive control over domestic relations issues including the
determination of marital status and that there must be no federal law dictating the definition of
marriage, by striking down 3 of the Defense of Marriage Act as an improper intrusion on the
power of the states to define marital status and to grant a liberty right to marry to same-sex couples
under state law. As the Supreme Court emphasized in that case, neither Congress nor the federal
courts have the authority to contradict state laws defining marital status. This Court should
therefore decline jurisdiction and abstain from deciding these issues, particularly on the basis of
the limited record available to this Court on this request for a temporary restraining order.
Federal courts have no jurisdiction to grant mandamus relief directed at state court judges,
which is what plaintiffs must have if they are to achieve the goal they desire. Without that relief no
same-sex couple can achieve the legally enforceable status of marriage, which requires more in
Kansas than a piece of paper, a ritual, and a notation in the vital statistic records. Indeed, in Kansas
a license is not necessary to achieve a lawful marriage and thus compelling issuance of a license
the only relief possible as plaintiffs have postured their case will not alter the legal status quo in
Kansas, namely that the state Constitution, statutes and common law all render marriages between
same sex couples null and void. Kansas law recognizes common law marriages, which dispense
entirely with the requirement of a marriage license, a formal ceremony, and registration. The
availability of common law marriage demonstrates the irrelevance of the actions of the named
3
Aplt. App. # 000070
117 of 446

defendants with regard to issuance of a marriage license in determining whether the Kansas
constitutional provision, statutes and common law that bar legal recognition of same sex marriages
remain enforceable. Because there is nothing that two district court clerks and the Secretary of
KDHE can do that would create the legally enforceable marriages that plaintiffs desire even if they
do everything this Court could possibly order them to do, the request for a temporary restraining
order or preliminary injunction must be denied.
Kansas prohibition of same-sex marriages is constitutionally permissible by reason of the
final judgment entered in the case of In re Estate of Gardiner, 273 Kan. 191, 42 P.3d 120, cert.
denied sub nom Gardiner v. Gardiner, 537 U.S.825, 123 S.Ct. 113, 154 L.Ed.2d 36 (2002). This
Court is obligated to give full faith and credit to that decision by reason of 28 U.S.C. 1738 unless
and until the United States Supreme Court issues a decision reversing it either expressly or
impliedly. No decision of the Tenth Circuit Court of Appeals has achieved that reversal. Gardiner
is still controlling law in Kansas. Gardiner illustrates that the fact that a couple gets a marriage
license does not mean that the marriage is recognized as valid in Kansas.
PROCEDURAL BACKGROUND
Plaintiffs are two pairs of same-sex prospective marriage applicants residing in two Kansas
counties seeking to compel two Kansas court clerks to issue marriage licenses to them despite
Kansas laws prohibiting that result. They have also sued Secretary Robert Moser of the Kansas
Department of Health and Environment (KDHE), seeking to compel him to expunge references
to brides and grooms from the marriage license forms issued in Kansas. Defendants have not yet
responded to the Complaint.
4
Aplt. App. # 000071
118 of 446

The Complaint alleges federal question jurisdiction arising from 42 U.S.C. 1983,
premised upon alleged violations of plaintiffs equal protection and due process rights under the
14th Amendment. (Doc. 1, 1, 3, and 11). Plaintiff Marie alleges that she filled out an application
for a marriage license for herself and plaintiff Brown at the Douglas County District Court but
issuance of the license was denied pursuant to an administrative order of the Chief Judge of the
Seventh Judicial District that directs the court clerk not to issue licenses to applicants of the same
sex. (Doc. 1, 16-17) Plaintiffs Wilks and DiTrani allege that they sought to obtain a marriage
license from a deputy clerk at the Sedgwick County District Court but were denied an application
because they were a same-sex couple. (Doc. 1, 18) Plaintiff Wilks alleges that she returned the
next day and spoke with Chief Judge Fleetwood of the 18th Judicial District, who informed her in
substance that Kansas law does not allow the issuance of marriage licenses to same-sex couples.
(Doc. 1, 19) Through persistence plaintiff Wilks and DiTrani finally obtained an application form
but were advised by court staff that no license would be issued until a court rules on the
constitutionality of the Kansas constitutional provision and related statutes [prohibiting same-sex
marriage]. (Doc. 1, 20-21).
Plaintiffs have filed a motion seeking a temporary restraining order/preliminary injunction
compelling defendants and their officers, agents, and employees acting in their official
capacities to permit issuance of marriage licenses to same-sex couples . . . and to recognize
marriages validly entered into by plaintiffs. (Doc. 3, p. 1, 1)
The Complaint recites that plaintiffs Marie and Brown have been in a stable relationship
with one another for twenty years and that plaintiffs Wilks and DiTrani have been in a stable
relationship with one another for five years. (Doc. 1, 6 and 7) The Complaint does not allege
5
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that either couple has pursued litigation to challenge Kansas marriage laws prior to October,
2014. The motion does not explain why plaintiffs marital status is now a matter of urgent concern
to them, more than it would have been at any earlier moment in their relationships. Neither the
Complaint nor the motion explains why plaintiffs have not already entered into common law
marriages or how the relief sought against the three named defendants would in any way affect
their legal ability to do so. The harms asserted by plaintiffs include social stigma and perceived
lack of dignity, as well as the inability to file tax returns as married persons. (Doc. 1, 28-31) The
Complaint does not describe what effort, if any, these plaintiffs have made to bring these harms to
the attention of the named defendants, nor does it explain how the named defendants actions
could avoid the alleged harms. The motion does not explain how the issuance of marriage licenses
to plaintiffs will alleviate these alleged harms.
PARALLEL LITIGATION BEFORE THE KANSAS SUPREME COURT

There is a pending legal proceeding concerning the issues raised in the Complaint. In State
of Kansas ex rel. Schmidt v. Moriarty, No. 112,590, a case filing which preceded the filing of this
case, the Kansas Supreme Court accepted jurisdiction of a mandamus proceeding against Chief
Judge Moriarty of the Tenth Judicial District challenging his administrative authority to order
issuance of marriage license to same-sex applicants in Johnson County, Kansas. The mandamus
action will be briefed later this month and will be argued on November 6, 2014. Based on the
issues to be briefed in the mandamus proceeding, it appears that the Kansas Supreme Court may
decide what effect recent Tenth Circuit Court of Appeals precedents should have on Kansas
marriage laws. The Kansas Supreme Court has issued an order prohibiting the issuance of
marriage licenses to same-sex couples until it decides the mandamus case against Chief Judge
6
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Moriarty. A certified copy of the Supreme Courts October 10, 2014 Order in State ex rel. Schmidt
v. Moriarty, is attached hereto and is subject to judicial notice as per Fed. R. Evid. 201. The
Order and information about the proceeding are also available on the Internet. See
http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20141010/112590.pdf
KANSAS LAW
A resolution of the plaintiffs motion for temporary restraining order requires an
understanding of the substance, procedures, and administration of Kansas marriage laws. Kansas
has never recognized same-sex marriages, a practice unknown to English common law, which
K.S.A. 77-109 declares to be the law of Kansas until it is modified by statute or judicial precedent.
The present version of the controlling Kansas marriage statutes appear at K.S.A. 2014
Supp. 23-2501 et seq.:
K.S.A. 2014 Supp. 23-2501 expressly restricts marriage to pairs of persons of opposite sex,
and declares all other purported marriages to be void as against public policy.
K.S.A. 2014 Supp. 23-2502 declares the recognition of common law marriages and
expressly confines those unions to marriages between persons who are at least18 years of
age, but this section makes no express reference to the sex of the parties.
K.S.A. 2014 Supp. 23-2503 declares incestuous marriages to be void and defines the
degree of relationship that would constitute an incestuous marriage. K.S.A. 2014 Supp.
23-2504 identifies the persons authorized to officiate over ceremonial marriages, and
permits the parties to dispense with officiation entirely.
K.S.A. 2014 Supp. 23-2505 authorizes district court clerks and district court judges to issue
marriage licenses, and sets out the recommended language for the license itself. Clerks and
7
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judges are empowered to confirm under oath that the applicants are old enough to satisfy
the law, but no process for confirming the sex of the applicants is mentioned. It gives the
KDHE secretary no role in this inquiry.
K.S.A. 2014 Supp. 23-2506 authorizes the use of a marriage license to change the name of
either party to the marriage.
K.S.A. 2014 Supp. 23-2507 requires the registration of all marriages under the
supervision of the secretary of health and environment as provided in K.S.A. 65-102.
K.S.A. 65-102 directs the KDHE secretary to prepare the blank forms used to gather vital
statistics related to marriage. It gives the KDHE secretary no supervisory authority over
decisions concerning denial of applications.
K.S.A. 2014 Supp. 23-2508 states the public policy of Kansas concerning recognition of
marriages entered into outside the state.
K.S.A. 2014 Supp. 23-2509 directs the secretary of health and environment to supply
marriage certificate forms and describes how the forms are to be used in recording
marriages. It gives the KDHE secretary no supervisory authority over court personnel.
K.S.A. 2014 Supp. 23-2510 imposes a license fee and directs where the fees are to go after
they are collected.
K.S.A. 2014 Supp. 23-2511 instructs those who officiate over marriages and the staff of the
court clerk what to do with marriage certificates after the ceremony has been performed.
K.S.A. 2014 Supp. 23-2512 directs the KDHE secretary to maintain indexed records of
marriages and to provide certified copies when requested. It gives the KDHE secretary no
authority over court personnel.
8
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K.S.A. 2014 Supp. 23-2513 imposes a criminal fine on persons obligated to process
marriage certificates who fail to obey the preceding laws.
K.S.A. 2014 Supp. 23-2514 directs judges and clerks to maintain copies of marriage
licenses issued by them. It gives the KDHE secretary no authority over court personnel.
K.S.A. 2014 Supp. 23-2515 requires that judges and clerks obtain a sworn statement from
applicants confirming that the requirements of K.S.A. 23-2503 are satisfied, and imposes a
criminal penalty if no such sworn statement is obtained. This statute does not expressly
require a sworn statement that all the requirements of K.S.A. 23-2501 are also satisfied. It
gives the KDHE secretary no role in this inquiry.
K.S.A. 2014 Supp. 23-2516 validates described classes of marriage that otherwise might
not comply with the strict letter of the law.
K.S.A. 2014 Supp. 23-2517 imposes a criminal penalty on any unauthorized person who
officiates over a marriage.
K.S.A. 2014 Supp. 23-2518 makes the copies of marriage documents kept by the court
admissible in evidence.
These statutes conform to the requirements of Article 15, 16 of the Kansas Constitution:
16. Marriage
(a) The marriage contract is to be considered in law as a civil contract. Marriage shall be
constituted by one man and one woman only. All other marriages are declared to be contrary to the
public policy of this state and are void.
(b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to
the rights or incidents of marriage.
9
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The Kansas statutory provisions relating to the sex of applicants for marriage licenses have
not changed in substance since the case of In re Estate of Gardiner, 273 Kan. 191, 42 P.3d 120,
cert. denied sub nom Gardiner v. Gardiner, 537 U.S.825, 123 S.Ct. 113, 154 L.Ed.2d 36 (2002)
was decided. No Kansas appellate case has addressed the validity of a purported common law
marriage between persons of the same sex, either before or after the Gardiner decision and the
subsequent passage of the constitutional amendment that produced Article 15, 16 of the Kansas
Constitution. The parties to the Gardiner case did not contend that a valid common law marriage
was present even if no legally enforceable ceremonial marriage had occurred, so the question was
not decided there.
The Court has requested briefs concerning the issues of standing, Younger abstention, and
Pullman abstention. Along with those issues this brief will briefly address issues of subject matter
jurisdiction and the substantive principles of law governing authority to grant injunctive relief.
Some of these same issues may also be addressed at greater length in a motion to dismiss when it
comes time for defendants to file their responsive pleadings on the merits. This brief addresses
only the effect of those issues on the propriety of the provisional remedy sought by the present
motion.
1. NEITHER INJUNCTIVE NOR DECLARATORY RELIEF IS AVAILABLE
AGAINST THESE DEFENDANTS.
No preliminary relief is proper if subject matter jurisdiction over the merits is doubtful.
Federal courts lack the authority to compel state court officials to reconsider official actions they
have previously refused to take. Eleventh Amendment immunity will apply even if the injunction
10
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would otherwise provide relief for the harm resulting from an allegedly unconstitutional refusal to
act.
Similar claims were made against the clerk of the Kansas Supreme Court in Buchheit v.
Green, 705 F.3d 1157 (10th Cir. 2012), where a state criminal defendant sued in federal court to
compel the court clerk to docket an appeal in his criminal case. The clerk had already refused to
docket the appeal before the federal lawsuit was filed. The lawsuit was dismissed based on
Eleventh Amendment immunity because it sought an injunctive remedy for past action rather than
prospective relief for an ongoing violation of federal rights:
Although Mr. Buchheits complaint states that he is seeking prospective injunctive relief,
he wants an order allowing him to proceed IFP and docket his appeal in state court. R. 12.
Because he is merely seeking to address alleged past harms rather than prevent prospective
violations of federal law, we can only reasonably categorize such relief as retrospective. As
such, it does not fall into the Ex Parte Young exception to state sovereign immunity, and
we must affirm the dismissal of his complaint. (See 705 F.3d at 1159)
In this case, plaintiffs similarly seek an order compelling the performance of an official act by state
court clerks to remedy the past event of their refusal to issue marriage licenses, and seek no relief
that can be obtained by action of these defendants affecting the future legal status of a marriage
between persons of the same sex under Kansas law.
The district court decision that was affirmed in Bucheit v. Green offered a more detailed
explanation for why injunctive relief could not be granted, as a matter of law:
To the extent this court can construe plaintiffs petition as one for mandamus, it also fails.
A federal districts mandamus authority extends only to federal officials. See 28 U.S.C.
1361 (The district courts have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.); see also Amisub (PSL), Inc. v. State of Colo. Dept
of Social Servs., 879 F.2d 789, 790 (10th Cir.1989) (No relief against state officials or
state agencies is afforded by 1361.); Sockey v. Gray, 159 F. Appx 821, 822 (10th Cir.
2005) (holding federal courts are without jurisdiction to grant a writ of mandamus against
state and local officials).
11
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Even if the Eleventh Amendment did not prevent the court from exercising subject matter
jurisdiction, the plain language of 1983 bars plaintiffs claim against this quasi-judicial
defendant.5
5
42 U.S.C. 1983 (providing that in any action brought against a judicial officer for
an act or omission taken in such officers judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or declaratory relief was
unavailable.); see Willner v. Frey, 421 F.Supp.2d 913, 926 (E.D.Va.2006) (holding
clerk of court may derivatively claim the benefit of absolute judicial immunity in
declaratory judgment action where acting within official capacity); see also Faurot v.
Barton, No. 1:06cv01005AWISMS, 2007 WL 3125078, at E.D.Cal. Oct. 24, 2007)
(holding court clerks and executive officer retained quasi-judicial immunity from a
suit for damages for rejecting the plaintiffs petition). (See Buchheit v. Green, No.
12-4038-CM-KGS, 2012 WL 1673917, **4-5 (D. Kan. May 14, 2012); (emphasis
supplied).
A similar conclusion was reached in Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011):
But even if Mr. Knoxs federal-court claims can survive, at least in part, RookerFeldman,
he is not entitled to relief. To the extent that he is seeking relief in the nature of mandamus,
ordering Defendants to take action in their capacities as state judges, [w]e have no
authority to issue such a writ to direct state courts or their judicial officers in the
performance of their duties. Van Sickle v. Holloway, 791 F.2d 1431, 1436 n. 5 (10th
Cir.1986) (internal quotation marks omitted); see Olson v. Hart, 965 F.2d 940, 942 (10th
Cir.1992) (Federal courts have no authority to issue a writ of mandamus to a state
judge.).
Likewise, he cannot obtain injunctive relief against Defendants. Although we have
previously said that a plaintiff may obtain an injunction against a state judge under 42
U.S.C. 1983, see Harris v. Champion, 51 F.3d 901, 905 (10th Cir.1995); Olson, 965 F.2d
at 943, those statements were abrogated by the Federal Courts Improvement Act of
1996, which provides that injunctive relief [against a judicial officer] shall not be
granted unless a declaratory decree was violated or declaratory relief was
unavailable, 42 U.S.C. 1983. (Emphasis supplied)
See also, Landrith v. Gariglietti, 505 Fed. Appx. 701, 702-703, 2012 WL 6062668 (10th Cir.
2012):
Federal courts are not authorized to grant injunctive relief against judicial officers taking
actions in their judicial capacity, absent limited circumstances not present here. 42 U.S.C.
1983 ([I]n any action brought against a judicial officer for an act or omission taken in
12
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such officers judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.). Yet there is no question that
Mr. Landrith is seeking to sue judicial officers for actions taken in their judicial capacity.
See Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir.2002) (judges and court clerks are
judicial officers). Neither under the long-entrenched, if judge made, domestic
relations exception are federal courts entitled to issue divorce, alimony, and child
custody decrees. Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119
L.Ed.2d 468 (1992). Nor are attempts to disguise the true nature of a domestic relations
action in order to secure a federal forum sufficient to preclude application of this rule.
McLaughlin v. Cotner, 193 F.3d 410, 413 (6th Cir.1999). Given all this, we have no
question the district court correctly dismissed Mr. Landriths case under 1915(e)(2).
(emphasis supplied).
The domestic relations exception to federal jurisdiction is relevant to the authority of the federal
courts to address state definitions of marriage, according to United States v. Windsor, __U.S.__,
133 S. Ct. 2675, 2691, 186 L. Ed. 2d 808 (2013) and Sosna v. Iowa, 419 U.S. 393, 404, 95 S. Ct.
553, 42 L. Ed. 2d 532 (1975).
Lack of Article III standing to sue these defendants for the relief requested will also prevent
plaintiffs from prevailing on the merits by depriving the Court of subject matter jurisdiction. Since
the injunction sought against these defendants will not achieve the relief desired by these plaintiffs,
injunctive relief is inappropriate even if Eleventh Amendment immunity did not apply. The
propriety of nonrecognition lawsuits naming court clerks and executive branch officials as
defendants was addressed in the case of Bishop v. Oklahoma, 333 Fed. Appx. 361, 2009 WL
1566802 (10th Cir. 2009), opinion after remand Bishop v. Smith, 760 F.3d 1070 (2014). The
conclusion in those successive opinions was first that a states executive officers cannot be sued to
enforce marital rights that are administered by the judiciary, and second that even a judicial officer
(court clerk) cannot be sued to compel recognition of marriages that the named individual has no
authority to recognize or reject. The lack of standing was fatal not just to injunctive relief, but also
to the claims for declaratory relief against the clerk. See 760 F.3d at 1091, n.13.
13
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A similar lack of standing was fatal to a lawsuit against the clerk who would issue a
marriage license to an applicant seeking to challenge Utahs prohibition of polygamous marriages
in the case of Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007). The adverse consequence that
the plaintiffs in Bronson sought to avoid would not be inflicted by the clerk, but by other
government officials, and so a lawsuit brought against the clerk would have been ineffective.
Similarly here the asserted adverse consequences that would harm these plaintiffs would be
imposed by other state officials who would refuse to give effect to any marriage entered into
between couples of the same sex, whether the defendant clerks issued marriage licenses or not.
The relief ultimately granted in Bishop was a judgment against the State of Oklahoma, not
a judgment against any of the individual state officials who were originally named as defendants.
At the very least the Bishop case would require substitution here of one or more different
defendants who are able to provide the desired legal recognition of otherwise void marriages
before any effective form of relief could be granted by this Court.
2. THE COURT SHOULD ABSTAIN FROM GRANTING THE REQUESTED
RELIEF.
The Court has requested that the parties address the potential for abstention under either the
Pullman doctrine or Younger abstention. Defendant Moser does not assert that relief should be
denied under either of these abstention doctrines at this time. Abstention doctrines will become
pertinent under these rationales only if future action by the Kansas Supreme Court makes them
relevant.
Pullman abstention is appropriate when: (1) an uncertain issue of state law underlies the
federal constitutional claim; (2) the state issues are amenable to interpretation and such an
interpretation obviates the need for or substantially narrows the scope of the constitutional claim;
14
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and (3) an incorrect decision of state law . . . would hinder important state law policies. Lehman
v. City of Louisville, 967 F.2d 1474, 1478 (10th Cir. 1992); Kansas Judicial Review v. Stout, 519
F.3d 1107, 1118-19 (10th Cir. 2008).
The mandamus action pending in the Kansas Supreme Court may render it unnecessary for
this Court to reach a decision on the constitutional questions posed, depending on the ultimate
scope of the issues decided. Whether the decision in the mandamus action will hinge upon an
interpretation of state law or instead will depend upon federal law is uncertain. Because the Kansas
Supreme Court has ordered briefing on both state law and federal law issues it could base its
decision on either. Pullman abstention is discretionary.
Three factors govern whether abstention is required under so-called Younger abstention.
The conditions that must be present to trigger this form of abstention are:
(1) there is an ongoing state criminal, civil, or administrative proceeding,
(2) the state court provides an adequate forum to hear the claims raised in the federal
complaint,
(3) the state proceedings involve important state interests, matters which traditionally look
to state law for their resolution or implicate separately articulated state policies.
See SenecaCayuga Tribe of Okla. v. Okla. ex rel. Thompson, 874 F.2d 709, 711 (10th
Cir.1989); Chapman v. Oklahoma, 472 F.3d 747, 749 (2006). Once these three conditions are
met, Younger abstention is non-discretionary and, absent extraordinary circumstances, a district
court is required to abstain. Crown Point I, LLC v. Intermountain Rural Elec. Assn, 319 F.3d
1211, 1215 (10th Cir. 2003).
15
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It is questionable whether the mandamus proceeding could provide these plaintiffs with an
adequate forum unless it produces a decision that grants them a right to appeal the denial of their
license applications. That appeal would undoubtedly provide them an adequate forum, in the event
it becomes available. Chief Judge Moriarty has now filed an answer in the mandamus proceeding.
His answer contends that he had jurisdiction over a case or controversy that allowed him to decide
whether Kansas laws are constitutionally valid, solely by reason of the pendency of applications
for same-sex marriages. If the Kansas Supreme Court decides that judicial decisions responding to
marriage license applications are orders entered in a civil proceeding, then any such applicant
denied a license would have a statutory right of appeal. If an appeal is available, these four
plaintiffs will still be able to pursue a direct appeal from the decisions that denied their requests for
marriage licenses.
It is not known at this time how soon the Kansas Supreme Court will decide the mandamus
case, though it is clear that no ruling will issue before November 6, 2014, when oral arguments will
occur. If a right of appeal is recognized and plaintiffs fail to pursue that right, they risk failure on
the merits based on principles of res judicata.
3. THE STANDARDS FOR GRANTING EITHER A TEMPORARY RESTRAINING
ORDER OR A PRELIMINARY INJUNCTION CANNOT BE MET.
Under the traditional four-prong test for a preliminary injunction, the party moving for an
injunction must show: (1) a likelihood of success on the merits; (2) a likely threat of irreparable
harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving
party; and (4) an injunction is in the public interest. See Winter v. NRDC, 555 U.S. 7, 20, 129 S.
Ct. 365, 172 L. Ed. 2d 249 (2008). Three types of preliminary injunctions are specifically
disfavored: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary
16
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injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could
recover at the conclusion of a full trial on the merits. For these categories of disfavored preliminary
injunctions, the movant has a heightened burden of showing that the traditional four factors weigh
heavily and compellingly in its favor before obtaining a preliminary injunction. See
Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301
(10th Cir. 2012).
These standards cannot be met in the present case. There is no likelihood of success on the
merits. Eleventh Amendment immunity and lack of Article III standing threaten to terminate the
lawsuit altogether, and the plain language of 42 U.S.C. 1983 bars preliminary injunctive relief.
Without a right to prevail on the merits, injunctive relief is not available. See Planned Parenthood
of Kansas and Mid-Missouri v. Moser, 747 F.3d 814 (10th Cir. 2014).
This Court is not compelled to apply the conclusions reached in the Tenth Circuit cases
relied upon by plaintiffs in preference to the conclusions reached in the case of In re Estate of
Gardiner, 273 Kan. 191, 42 P.3d 120, cert. denied sub nom Gardiner v. Gardiner, 537 U.S.825,
123 S.Ct. 113, 154 L.Ed.2d 36 (2002). Rather, this Court is obligated to give full faith and credit to
the Gardiner decision by reason of 28 U.S.C.A. 1738 unless and until the United States Supreme
Court issues a decision reversing it either expressly or impliedly. No decision of the Tenth Circuit
Court of Appeals has achieved that reversal. The Kansas Supreme Court is constitutionally
obligated to follow precedents of the United States Supreme Court, but not decisions of a federal
circuit court of appeals particularly when, as here, there is contrary binding precedent on point:
[T]he views of the federal courts of appeals do not bind the California Supreme Court when
it decides a federal constitutional question, and disagreeing with the lower federal courts is
not the same as ignoring federal law. (see Johnson v. Williams, __U.S.__, 133 S.Ct. 1088,
1098, 185 L.Ed.2d 105 (2013)
17
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The United States Supreme Court has not abandoned principles of federalism, and has instead
strengthened its support for state-by-state experimentation in addressing difficult social questions:
Were the Court to rule that the question addressed by Michigan voters is too sensitive or
complex to be within the grasp of the electorate; or that the policies at issue remain too
delicate to be resolved save by university officials or faculties, acting at some remove from
immediate public scrutiny and control; or that these matters are so arcane that the
electorates power must be limited because the people cannot prudently exercise that
power even after a full debate, that holding would be an unprecedented restriction on the
exercise of a fundamental right held not just by one person but by all in common. It is the
right to speak and debate and learn and then, as a matter of political will, to act through a
lawful electoral process. (See Schuette v. Coalition to Defend Affirmative Action,
Integration and Immigrant Rights and Fight for Equality By Any Means Necessary
(BAMN), __U.S.__, 134 S.Ct. 1623, 1636, 188 L.Ed.2d 613 (2014))
Every state and federal judge takes an oath to uphold the Constitution of the United States. When a
circuit court decision is inconsistent with Supreme Court precedent and the Constitution, there is
no obligation to disregard the Constitution and instead follow the erroneous circuit court decision.
The dissenting opinions of Judge Kelly in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) and
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) clearly demonstrate the errors underlying the
conclusion that Supreme Court decisions that expressly reserve to the states the power to decide
delicate political questions really mean the opposite of what they say, and why the binding
precedent in Gardiner remains the controlling law in Kansas.
No case has allowed the sort of claim that plaintiffs have presented against Secretary
Moser, which is essentially an asserted constitutional right to a marriage process uniquely tailored
to individual personal preferences. See Rappaport v. Katz, 380 F. Supp. 808 (S.D.N.Y 1974).
Plaintiffs have waited five years or more to attempt a formal marriage, and apparently have
voluntarily eschewed entering into common law marriages. Neither the Complaint nor the motion
alleges any exigency or risk of imminent adverse legal consequences to plaintiffs if they await a
18
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final judgment on the merits. The public interest definitely favors having one rule for all Kansans,
rather than different rules in two of 105 Kansas counties.
CONCLUSION
For all of the above stated reasons the motion for a temporary restraining order or
preliminary injunction should be denied.
Respectfully Submitted,
OFFICE OF THE ATTORNEY GENERAL
DEREK SCHMIDT
_________________________________
Steve R. Fabert, #10355
Office of the Attorney General
120 S.W. 10th Avenue
Tel: (785) 368-8420
Fax: (785) 296-6296
Email: steve.fabert@ag.ks.gov
This is to certify that on this 23rd day of October, 2014, a true and correct copy of the above
and foregoing 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 with a courtesy copy served by email upon Joshua A. Block,
American Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004,
jblock@aclu.org.
________________________________
Steve R. Fabert
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Document: 01019377512
Page: 91
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Document: 01019377512
Page: 92
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Document: 01019377512
Page: 93
Aplt. App. # 000089
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IN THE UNITED STATED DISTRICT COURT


DITRANI,
Plaintiffs,
v.
)
)
)
) Case No. 14-CV-2518-DDC-TJJ
)
)
ROBERT MOSER, M.D., in his official capacity )
as Secretary of the Kansas Department of
)
Health and Environment and
)
)
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
)
)
Defendants.
)
_________________________________________)
DEFENDANT CLERKS RESPONSE IN OPPOSITION TO PLAINTIFFS
MOTION FOR TEMPORARY RESTRAINING ORDER
Douglas A. Hamilton, Clerk of the District Court of Douglas County Kansas, and Bernie
Lumbreras, Clerk of the District Court for Sedgwick County, Kansas, concur in the Response
filed by KDHE Secretary Dr. Moser in opposition to Plaintiffs request for temporary restraining
order or preliminary injunction (Doc. 14).
Mr. Hamilton and Ms. Lumbreras submit this
response to emphasize certain points specific to their position as District Court Clerks in Kansas.
For the reasons stated by Dr. Moser and as elaborated upon briefly herein, Plaintiffs request
must be denied.
First, Plaintiffs request for a temporary restraining order or preliminary injunction
against two court clerks, judicial officers, is prohibited by federal law. Second, the Tenth Circuit
has already recognized that court clerks are not the proper defendants in an action such as this
seeking recognition of same-sex marriage as this is not the clerks role. Third, the Kansas
1
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Supreme Court has already assumed jurisdiction over this matter in a case filed prior to this one,
State ex rel. Schmidt v. Moriarty and in that action, on October 10, 2014 ordered a stay on
issuing marriage licenses to same-sex couples in Johnson County, Kansas pending further order
of the Court, citing the interest of establishing statewide consistency. Granting Plaintiffs
requested relief, assuming that were authorized by law, would conflict with the Kansas Supreme
Courts Order, but also its supervisory authority over all of the clerks in Kansas. It would also
lead to a confusing and non-uniform situation in which clerks in two counties are doing one thing
and the other 103 are doing something else, implicating important federalist concerns by
disruption of a state court judicial system, concerns embodied in federal statute as well as
abstention doctrines.
STATEMENT OF FACTS
1. Douglas Hamilton and Bernie Lumbreras are Clerks of the District Court in Douglas
and Sedgwick Counties respectively. Complt. (Doc. 1), at 9-10.
2.
In Kansas, both clerks of the district court and judges have a statutorily prescribed
role in issuing marriage applications and licenses as stated in K.S.A. 2014 Supp. 232505.
3. The Complaint, filed on October 10, 2014, alleges that on October 7, 2014, Plaintiff
Wilks, who resides in Sedgwick County, sought a marriage license for the purpose of
marrying another woman and was told by Chief Judge Fleetwood of the 18th Judicial
District that she could not obtain a marriage license in Kansas to marry another
woman. Complt. (Doc. 1), at 19.
4. The Complaint alleges that Plaintiff Marie, who resides in Douglas County, applied
for a marriage license at the Douglas County Clerks Office on October 8, 2014 and
2
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was told to return on October 14, 2014. Complt. (Doc. 1), at 16.
5. According to the Complaint, on October 9, 2014, the Chief Judge of the Seventh
Judicial District, Robert Fairchild, issued Administrative Order 14-13 which states
that the court is bound to apply and follow existing Kansas laws. Complt. (Doc. 1),
at 17. The Order concludes: The Clerk of the District Court shall not issue a
marriage license to these applicants or to any other applicants of the same sex. Id.
6. In Kansas, district courts exist in all Kansas counties. K.S.A. 20-301. A clerk of the
district court is appointed in each county. K.S.A. 2014 Supp. 20-343. 1
7. Appointed clerks, their deputies and assistants have such powers, duties and
functions as are prescribed by law, prescribed by rules of the supreme court or
assigned by the chief judge. K.S.A. 20-343. The clerks of the district court shall
do and perform all duties that may be required of them by law or the rules and
practice of the courts.... K.S.A. 20-3102. Clerks are expressly prohibited from
giving legal advice. K.S.A. 20-3133.
8. As per K.S.A. 54-106, [a]ll officers elected or appointed under any law of the state
of Kansas shall, before entering upon the duties of their respective offices, take and
subscribe an oath or affirmation, as follows: I do solemnly swear [or affirm, as the
case may be] that I will support the constitution of the United States and the
constitution of the state of Kansas, and faithfully discharge the duties of [my office].
So help me God.
9. Kansas is a unified court system. K.S.A. 20-101, Kan. Const. Art. 3, 1 ([t]he
supreme court shall have general administrative authority over all courts in this state);
K.S.A. 20-343, along with other statutes concerning the Judicial Branch, was amended in 2014. 2014 Sess. Laws
Ch. 82. The current version appears at http://ksrevisor.org/statutes.
3
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K.S.A. 2014 Supp. 20-318, K.S.A. 2014 Supp. 20-319. In Kansas, the district courts
are organized into thirty-one (31) judicial districts. Kan. Const., Art. 3, 6; K.S.A. 4202, et seq. Chief Judges, including Judge Fairchild and Judge Fleetwood, are subject
to appointment by and supervision of the Kansas Supreme Court. See, e.g., K.S.A.
2014 Supp. 20-329. Clerks of the District Court Hamilton and Lumbreras, are Kansas
Judicial Branch officers, appointed by their respective Chief Judges and are Judicial
Branch employees. K.S.A. 2014 Supp. 20-343, K.S.A. 2014 Supp. 20-345. As of
June 30, 2013, there were 246 district judges in Kansas. Annual Report of the Courts
of Kansas, FY 2013, available at http://intranet.kscourts.org:7780/stats. 2
10. Citing the Attorney Generals reference to an inconsistent practice among the states
31 judicial districts, and in the interest of establishing statewide consistency, on
Friday, October 10, 2014, the Kansas Supreme Court issued an Order in State ex rel.
Schmidt v. Moriarty, 112590, granting the Attorney Generals request for a temporary
stay of Chief Judge Kevin Moriartys Administrative Order allowing the issuance of
same-sex marriage licenses in Johnson County, Kansas. A certified copy of the
Supreme Court's Order is attached as Exhibit A hereto.
The Court also set an
expedited briefing schedule and set a hearing for November 6, 2014 at 10 a.m. to
determine the issues raised by Judge Moriarty's Order. Id.
Plaintiffs request a temporary restraining order or a preliminary injunction against Ms.
Lumbreras and Mr. Hamilton, two of the 105 district court clerks, enjoining them from following
existing state law as well as the express direction of their respective Chief Judges and by
2
A court may take judicial notice under Fed. R. Evid. 201 of information on the Internet. See OToole v. Northrop
Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007).
4
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implication, the October 10, 2014 Order of the Kansas Supreme Court. Plaintiffs request for
immediate injunctive relief against the Clerks must be denied for several reasons.
Federal Law Prohibits the Requested Injunction Against Judicial Officers
Plaintiffs premise their request for injunctive relief on 42 U.S.C. 1983. However, since
the 1996 Amendment, Federal Courts Improvement Act of 1996, Pub. L. 104-317, 110 Stat. 3847
(Oct. 19, 1996), 42 U.S.C. 1983 expressly prohibits injunctive relief against judicial officers,
including the proviso: except that in any action brought against a judicial officer for an act or
omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. (Emphasis added).
Mr. Hamilton and Ms. Lumbreras are judicial officers, appointed by their respective
Chief Judges. K.S.A. 2014 Supp. 20-343. The Complaint alleges that they were acting in their
respective official capacities as clerks in this matter. See Complt. (Doc. 1), at 9-10. The
Complaint also alleges that Clerks Hamilton and Lumbreras were acting on orders of their
respective Chief Judges, Fairchild and Fleetwood. Id., at 17, 19. In Kansas, the issuance of
marriage licenses is a responsibility of clerks and judges, K.S.A. 2014 Supp. 23-2505, both of
which are judicial officers. See, e.g., Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 2002).
Injunctive relief is expressly proscribed by 42 U.S.C. 1983. The Tenth Circuit has so held. See,
e.g, Landrith v. Gariglietti, 505 Fed. Appx. 701, 702-03, 2012 WL 6062668 (10th Cir. 2012);
Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011).
To the extent that Plaintiffs complain of the Clerks respective actions in allegedly failing
to issue marriage licenses on the orders of their respective Chief Judges upon request on October
7-8, 2014, retrospective relief, this relief is also barred by Eleventh Amendment immunity as
stated in Buchheit v. Green, 705 F.3d 1157, 1159 (10th Cir. 2012), a case on point.
5
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Similarly, under the somewhat unique circumstances presented by this case given the
action and October 10, 2014, Order of the Kansas Supreme Court, the Anti-Injunction Act
prohibits this court from granting injunctive relief against the Clerks. The statute, 28 U.S.C.
2283, provides: [a] court of the United States may not grant an injunction to stay proceedings
in a state court except as expressly authorized by Act of Congress, or where necessary in aid of
its jurisdiction, or to protect or effectuate its judgments. As explained by the U.S. Supreme
Court:
[t]he Act, which has existed in some form since 1793, see Act of Mar. 2, 1793, ch.22, 5,
1 Stat. 335, is a necessary concomitant of the Framers decision to authorize, and
Congress decision to implement, a dual system of federal and state courts. It represents
Congress considered judgment as to how to balance the tensions inherent in such a
system. Prevention of frequent federal court intervention is important to make the dual
system work effectively. By generally barring such intervention, the Act forestalls the
inevitable friction between the state and federal courts that ensues from the injunction of
state judicial proceedings by a federal court. Due in no small part to the fundamental
constitutional independence of the States, Congress adopted a general policy under which
state proceedings should normally be allowed to continue unimpaired by intervention of
the lower federal courts, with relief from error, if any, through the state appellate courts
and ultimately this Court.
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988) (citations omitted).
An injunction ordering the Clerks to do as Plaintiffs suggest implicates the policies and
interests behind the Anti-Injunction Act. What Plaintiffs seek from this Court is an Order
enjoining the Orders of Chief Judges Fairchild and Fleetwood and, by implication, the Kansas
Supreme Courts proceeding in State ex. rel. Schmidt v. Moriarty. In its October 10, 2014, Order,
the Supreme Court stated that it was assuming jurisdiction over the marriage license question in
the interest of establishing statewide consistency and establishing a briefing schedule and
hearing date to determine one or more issues set for briefing in the Order. The requested
temporary restraining order in this case interferes with the stay order and the pending proceeding
6
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in State ex rel. Schmidt v. Moriarty. 3

Clerks Are Not Necessary or Proper Defendants in Non-Recognition Cases
Plaintiffs dont just seek a marriage license; they seek recognition of their marriage for all
purposes. See Complt. (Doc. 1), 2 (implying that Plaintiffs seek the legal sanction, respect,
protections, and support that heterosexuals and their families are able to enjoy through
marriage.); 5 (referring to the need to eliminate the myriad serious harms inflicted on them
by the marriage ban and Defendants enforcement of it); 14 (stating that plaintiffs are without
the same legal shelter, dignity, and respect afforded by the State of Kansas to other families
through access to the universally celebrated status of marriage. . . [plaintiffs are deprived of]
equal dignity, security, and legal protections afforded to other Kansas families.); 28 (referring
to the right to inherit property and to file joint state tax returns); 29 (referring to unique social
recognition from marriage); 47 (referring to an interest in obtaining full liberty, dignity, and
security for themselves, their family, and their parent-child bonds); 60- 77 (alleging other
interests). Contrary to Plaintiffs assertion, a favorable decision against two court clerks in two
of 105 Kansas counties will not avoid the injuries described above, or prevent irreparable
injuries. Id., at 80.
Although out of candor counsel acknowledges some contrary indication in the Supreme
Courts decision in Mitchum v. Foster, 407 U.S. 225 (1972) (holding that the availability of an
equitable remedy in 1983 and the facts of that case in which the state court proceeding was
alleged to be unconstitutional allowed for an exception to the Anti-Injunction Act), that 1972
decision obviously preceded the 1996 Amendment proscribing preliminary injunctive relief
against judicial officers (and hence, removing the underpinning for the holding as to state court
judicial officers). Further, Mitchum did not deal with the situation alleged here where the state
court proceeding is not itself alleged to be unconstitutional as stated in Hickey v. Duffy, 827 F.2d
234, 238 (7th Cir. 1987).
7
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Accordingly, as the Tenth Circuit held in the Bishop case, the district court clerks are not
proper defendants as they dont recognize marriages. Bishop v. Oklahoma, 333 Fed. Appx.
361, 2009 WL 1566802 (10th Cir. 2009), opinion after remand Bishop v. Smith, 760 F.3d 1070,
1091, n.13 (2014). This also goes to the related question of standing and appropriate relief, as
while even if this Court were to grant Plaintiffs requests, this would only result in paperwork
which would require still further action by one or more courts of competent jurisdiction to
determine if it had any validity or legal effect. See, e.g., In re Estate of Gardiner, 273 Kan. 191,
42 P.3d 120, cert. denied sub nom Gardiner v. Gardiner, 537 U.S.825 (2002). It will not
eliminate Plaintiffs alleged harms, nor will it achieve what Plaintiffs seek.
Otherwise put and as raised by this Courts request for information on standing, a
plaintiff must show: (1) that [she] has suffered a concrete and particular injury in fact that is
either actual or imminent; (2) the injury is fairly traceable to the alleged actions of the
defendant; and (3) the injury will likely be redressed by a favorable decision. The issue at
hand turns on the third requirement that of redressability which is not met when a plaintiff
seeks relief against a defendant with no power to enforce a challenged statute. Bishop v. Smith,
760 F.3d 1070, 1088 (10th Cir. 2014) (emphasis added; citations omitted). While the Clerks have
no evidentiary burden at this juncture, the Complaint clearly alleges that the Clerks are following
Kansas law as it exists today and that they have no legal authority to do otherwise. See, e.g.,
Complt. (Doc. 1), at 9-10 (alleging that the clerks must ensure compliance . . . with relevant
Kansas laws, including those that exclude same-sex couples from marriage); 22-27 (pointing
out that Kansas law as adopted by the Legislature as well as the constitutional amendment
prohibit same-sex marriage).
8
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According to the Complaint, Clerks Hamilton and Lumbreras and their respective
deputies are complying with their oaths of office and the Orders of their respective Chief Judges.
Hamilton and Lumbreras have no power to remedy the other alleged harms set forth in the
Complaint such as the right to file joint tax returns or inherit property. Complt. (Doc. 1), at 28.
An injunction against the Clerks, even if that were legally possible and factually supported,
would not redress the Plaintiffs alleged injuries or harms; Plaintiffs have failed to posture their
suit correctly for standing purposes to obtain the recognition and relief they seek. See also,
Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (questioning standing in a lawsuit
challenging a clerks refusal to issue a marriage license).
The Requested Injunction is Barred by Abstention
Although these issues may be extensively briefed at the appropriate time, the Court
indicated it was interested in the parties views on standing and abstention. Two abstention
doctrines mentioned by the Court stemmed from Younger v. Harris, 401 U.S. 37 (1971), and
Railroad Commission v. Pullman Co., 312 U.S. 496 (1941), respectively. Those two doctrines
are addressed in Defendant Mosers Response (Doc. 14, at 14-16), in which the Clerks concur.
Plaintiffs filing on this issue (Doc. 7) acknowledges that Younger bars federal injunctive
relief in civil proceedings involving certain orders . . . uniquely in furtherance of the state courts
ability to perform their judicial functions. (Doc. 7, at 4, citing New Orleans Pub. Serv., Inc. v.
Council of City of New Orleans, 491 U.S. 350, 368 (1989)). Plaintiffs cursory analysis ignores
the general rule to impliedly suggest that only the two specific examples involved in the two
cases cited by the NOPSI Court (civil contempt order and requirement for the posting of bond
pending appeal), are within Younger. NOPSI and Sprint Communications, Inc. v. Jacobs, 134 S.
Ct. 584 (2013), cited by Plaintiffs, involved underlying administrative actions and are not
9
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factually analogous here. However, the rule stated in NOPSI, which was reiterated in Sprint, at
591, without much discussion, is not by its terms limited to civil contempt orders and orders
involving posting of bonds pending appeals. See Sprint, 134 S. Ct. at 588 (recognizing that the
Court has applied Younger to state civil proceedings that implicate a States interest in enforcing
the orders and judgments of its courts.). In State ex rel. Schmidt v. Moriarty, the Court issued a
stay order on issuance of same-sex marriage licenses as part and parcel to its assuming
jurisdiction in that case, preserving the status quo pending its opportunity to rule on the questions
presented; that in and of itself is most assuredly a judicial function, as well as assuring
uniformity by clerks (as well as the 246 Kansas Judges charged by statute with performing this
function), in their performance of this function in the State of Kansas, the type of order uniquely
in furtherance of the state courts ability to perform their judicial functions.
Although this issue can be briefed extensively at the appropriate time, it bears noting that
the requested injunction against two of 105 clerks operating under the supervision of the Kansas
Supreme Court and its judicial system implicates the rationale and policies underlying the
abstention doctrine first announced by the Supreme Court in Burford v. Sun Oil Co., 319 U.S.
315 (1943). In that case, a federal court proceeding was brought by Sun Oil Company to attack
the validity of an order of the Texas Railroad Commission granting Burford a permit to drill four
wells in a Texas oil field. The Court observed that even when a federal court may have
jurisdiction, it is in the public interest that federal courts of equity should exercise their
discretionary power with proper regard for the rightful independence of state governments in
carrying out their domestic policy. Id., at 316-18. In that case, the Court observed that the issue
involved a Texas regulatory system, hundreds of operators, and important state interests being
overseen by the Texas Railroad Commission in a unified system. See id., at 318-30.
10
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As later elaborated upon by the Supreme Court, this doctrine has been applied [w]here
timely and adequate state-court review is available, a federal court sitting in equity must decline
to interfere with proceedings or orders of state administrative agencies: (1) when there are
difficult questions of state law bearing on policy problems of substantial public import whose
importance transcends the result in the case then at bar, or (1) where the exercise of federal
review of the question in a case and in similar cases would be disruptive of state efforts to
establish a coherent policy with respect to a matter of substantial public concern. NOPSI,
491 U.S. at 361 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,
814 (1986)) (emphasis added).
As a matter of state law as set forth above, Kansas court clerks operate as part of a unified
Kansas judicial system, operating under the control and supervision of the Kansas Supreme
Court. In issuing its October 10, 2014, Order in State ex rel. Schmidt v. Moriarty, the Court was
not only acting as a Court but also as an entity with administrative and supervisory authority over
Chief Judge Moriarty, Sandra McCurdy, Clerk of the Court of Johnson County, and all of the
other Clerks in the State of Kansas. The Courts October 10, 2014, Order indicated it was
granting the stay on issuance of same-sex marriage licenses in Johnson County in the interest of
establishing statewide consistency. Obviously, an Order from this Court requiring issuance of
marriage licenses from two of 105 district court clerks in two of 105 counties is contrary to the
interest of establishing statewide consistency cited by the State Supreme Court. It also creates
a confusing, disruptive and non-uniform situation in this important area of substantial public
concern and state policy interests, implicating the policies behind the Burford abstention doctrine.
11
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CONCLUSION
Defendants have no burden at this point, as their responsive pleadings are not yet even
due. As pointed out in Dr. Mosers Response (Doc. 14, at 16-19), Plaintiffs bear the heavy
burden of showing that they are entitled to the extraordinary relief requested in this case.
Plaintiffs Complaint and request for immediate temporary restraining order and preliminary
injunction (Docs. 1, 3-4), fail to meet that burden. The request for temporary restraining order
and/or preliminary injunction against Clerks Douglas Hamilton and Bernie Lumbreras must be
denied by this Court.
DEREK SCHMIDT
s/M.J. Willoughby
M.J. Willoughby KS 14059
Tel: (785) 296-2215; Fax: (785) 296-6296
Attorney for Defendants Hamilton and Lumbreras
This is to certify that on this 23rd day of October, 2014, a true and correct copy of the
above and foregoing 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
jblock@aclu.org, and upon Steve Fabert, Assistant Attorney General, 120 S.W. 10th, Topeka, KS
66612-1507, steve.fabert@ag.ks.gov, Counsel for Defendant Moser.
s/M.J. Willoughby
M.J. Willoughby
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Kail Marie, et al.,
Plaintiffs,
v.
Robert Moser, M.D., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
PLAINTIFFS REPLY MEMORANDUM REGARDING PLAINTIFFS MOTION FOR

PRELIMINARY INJUNCTION OR TEMPORARY RESTRAINING ORDER
On October 10, 2014, Plaintiffs filed their complaint seeking injunctive relief and a
declaratory judgment that the Kansas constitutional and statutory provisions prohibiting samesex marriage violate the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution. Doc. 1. On October 13, 2014, Plaintiffs filed a
Motion for Preliminary Injunction and Temporary Restraining Order in which Plaintiffs asked
the Court to (1) enjoin Defendants and their officers, employees, and agents from enforcing
article 15, section 16 of the Kansas Constitution, Kansas Statutes Annotated 23-2501 and 232508, and any other sources of state law and (2) require Defendants and their officers,
employees, and agents in their official capacities to permit issuance of marriage licenses to samesex couples, pursuant to the same restrictions and limitations applicable to different-sex couples
freedom to marry, and to recognize marriages validly entered into by Plaintiffs. Doc. 3. On
October 18, responding to the Courts request, Plaintiffs filed a supplemental brief on abstention.
Doc. 7. On October 23, 2014, Defendant Moser and Defendants Hamilton and Lumbreras filed
separate responses in opposition to Plaintiffs Motion. Doc. 14 (Moser Response) and Doc. 15
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(Clerks Response).1
Plaintiffs respectfully submit the following Reply Memorandum in
further support of their Motion for Preliminary Injunction and Temporary Restraining Order
INTRODUCTION
Under binding precedent from the U.S. Court of Appeals for the Tenth Circuit, state
officials may not deny the issuance of a marriage license to two persons, or refuse to recognize
their marriage, based solely upon the sex of the persons in the marriage union. Kitchen v.
Herbert, 755 F.3d 1193, 1199 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014).
See also Bishop v. Smith, 760 F.3d 1070, 1080 (10th Cir.) (State bans on the licensing of samesex marriage significantly burden the fundamental right to marry), cert. denied, 83 U.S.L.W.
3102 (U.S. Oct. 6, 2014). Each day that Kansas officials act in defiance of this directly
controlling precedent causes irreparable harm to Plaintiffs and other same-sex couples seeking to
vindicate their clearly established constitutional rights. Defendants and other Kansas officials
may disagree with that precedent, and they may wish to waste their time and the publics money
asking the Tenth Circuit to reconsider its precedent en banc or to petition the Supreme Court for
a writ of certiorari. But they do not have a right to continue to violate Plaintiffs clearly
established constitutional rights while they engage in that futile pursuit.
Defendants respond to the motion for a preliminary injunction with an assortment of
frivolous and far-fetched procedural arguments. In the section entitled Argument and
Authorities, Defendant Moser makes three basic arguments. Id., pp. 10-19. First, no relief is
The Clerks Response essentially adopts the Moser Response, but Defendants Hamilton and
Lumbreras submit this [separate] response to emphasize certain points specific to their position
as District Court Clerks in Kansas. Doc. 15, p. 1.
2
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available to Plaintiffs because they ostensibly lack standing and have sued the wrong defendants.
Id., pp. 10-14. Second, the federal district court should abstain from hearing this dispute because
of allegedly parallel proceedings in the Kansas Supreme Court. Id., pp. 14-16. Third, Plaintiffs
cannot meet the requirements for a preliminary injunction because other courts have ostensibly
stayed their decisions pending appeal. Id., pp. 16-19. Within each of these headings, Defendant
raises additional legal arguments. The Clerks Response embellishes certain of the arguments
advanced in the Moser Response and adds a few new ones. Plaintiffs will reply to the arguments
advanced by Defendants by subject matter.
I.
MOSER AND THE DEFENDANT CLERKS ARE PROPER DEFENDANTS IN

A SUIT SEEKING THE ISSUANCE OF MARRIAGE LICENSES.
a. Plaintiffs suit seeks the right to marry, not recognition.
In Bishop v. Smith, two same-sex couples sued various Oklahoma state officials. One
couple, Mary Bishop and Sharon Baldwin, sought an Oklahoma marriage license. 760 F.3d at
1074-75. A second couple, Susan Barton and Gay Phillips, had married in another jurisdiction
and sought recognition of that marriage in Oklahoma. Id. at 1075. The Tenth Circuit ruled in
favor of the couple seeking an Oklahoma marriage license, see id. at 1079-82, and held that the
second couple had not sued a proper defendant for their claim seeking recognition of an out-ofstate marriage, id. at 1082-92.
The Plaintiffs in this case are seeking the freedom to marry in Kansas with a Kansas
marriage license, but Secretary Moser and the Defendant Clerks repeatedly and slyly attempt
to distort Plaintiffs claim into a claim seeking marriage recognition. See, e.g., Clerks
Response, Doc. 15, p. 7 (Plaintiffs dont just seek a marriage license; they seek recognition of
3
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their marriage for all purposes); Moser Response, Doc. 14, passim, repeatedly referring to
recognition. This is not a case about recognition of out-of state marriages. Plaintiffs seek the
freedom to marry in Kansas, and the injunctive relief they have requested is exactly the same
kind of injunctive relief that courts have provided for in every other state within the Tenth
Circuit. See, e.g., Bishop v. Smith, 760 F.3d at 1082 & 1096 (affirming the district courts
permanent injunction requiring defendant district court clerk to process and issue a marriage
license to the Bishop couple despite Oklahomas constitutional and statutory ban on same-sex
marriage); Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 U.S. Dist. LEXIS 100894,
*17, 2014 WL 3634834, *5 (D. Colo. July 23, 2014) (entering preliminary injunction to allow
issuance of marriage licenses inter alia), 2014 U.S. Dist. LEXIS 148123, *4 (D. Colo. Oct. 17,
2014) (making injunction permanent and entering final judgment in favor of plaintiffs); Guzzo v.
Mead, No. 14CV200SWS, 2014 U.S. Dist. LEXIS 148481, *21-22, 2014 WL 5317797, at
*9 (D. Wyo. Oct. 17, 2014) (entering preliminary injunction), 2014 U.S. Dist. LEXIS 150591,
*3 (D. Wyo. Oct. 21, 2014) (lifting temporary stay & immediately enjoining enforcement of laws
denying marriage licenses to same-sex couples, inter alia).
As discussed below, there is no question that Secretary Moser and the Defendant Clerks
are proper defendants for that marriage claim.
b. Plaintiffs have standing to sue Defendant Moser.
Defendants argue that Plaintiffs lack standing to sue Secretary Moser, who is not a
proper party defendant in this lawsuit under the analysis followed in Bishop v. Oklahoma, 333
Fed. Appx. 361, 2009 WL 1566802 (10th Cir. 2009) [Bishop I] and Bishop v. Smith, 760 F.3d
4
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1070 (10th Cir. 2014) [Bishop II]. Moser Response, Doc. 14, p. 2 (bold in original).
Specifically, Defendant Moser contends that he is merely the records custodian for marriage
licenses and has neither supervisory authority over the judicial officials (judges and district court
clerks) who are charged with issuing marriage licenses in Kansas nor sufficient involvement in
the issuance of marriage licenses to be a defendant amenable to suit under the Eleventh
Amendment. Id. Defendant further claims that [n]o case anywhere in the country, state or
federal, has held, implied, or suggested that the use of the terms bride and groom on marriage
licenses violates constitutional rights. Id.
Defendant Mosers involvement in marriage license processing is much more significant
than he would have the Court believe. Among other things, under Kansass statutes, Defendant
Moser is responsible for the following activities related to marriages in Kansas: (1) supervising
the registration of all marriages, Kan. Stat. Ann. 23-2507; (2) preparing blank forms used to
gather vital statistics related to marriage, Kan. Stat. Ann. 65-102; (3) supplying marriage
certificate forms to district courts, Kan. Stat. Ann. 23-2509; and (4) maintaining an index of
marriage records and providing certified copies of those records on request, Kan. Stat. Ann.
23-2512. Because these registration and enabling functions must be undertaken in order for
Plaintiffs marriages to be registered and on-record with the state (and thus be effective
marriages),plaintiffs have standing to sue Defendant Moser because he can redress the injuries to
Plaintiffs related to the forms, certificates, indexing, and marriage registration practices in
Kansas that fall under his control.
5
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Moreover, contrary to Defendants argument that no other case has involved a defendant
responsible for marriage license forms and registration, numerous cases have held that a
statewide official charged with preparing the marriage license forms is a proper defendant for
claims by same-sex couples seeking marriage licenses. In Bostic v. Schaefer, for example, the
Fourth Circuit held that the Virginia Registrar of Vital Records was a proper defendant for
plaintiffs seeking a marriage license because of her job duties related to preparing the marriage
license forms:
Rainey's promulgation of a marriage license application form that does not allow
same-sex couples to obtain marriage licenses resulted in Schaefers denial of
Bostic and Londons marriage license request. For the reasons we describe above,
this license denial constitutes an injury. Bostic and London can trace this injury to
Rainey due to her role in developing the marriage license application form in
compliance with the Virginia Marriage Laws, and the relief they seek would
redress their injuries. Bostic and London consequently have standing to sue
Rainey.
760 F.3d 352, 372 (4th Cir. 2014). Accord Wolf v. Walker, 14-CV-64-BBC, 2014 WL 1729098
(W.D. Wis. Apr. 30, 2014) (holding that state registrar was proper defendant because if
plaintiffs prevail on their claims, they could seek an injunction requiring [registrar] to amend
these documents so that they are inclusive of same-sex couples).
6
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For these reasons, Plaintiffs have standing to sue Defendant Moser in this case.2
c.
Plaintiffs have standing to sue Defendants Hamilton and Lumbreras.
The Tenth Circuit has already held in Bishop II that state district court clerks are proper
defendants in lawsuits seeking the freedom to marry. See Bishop II, 760 F.3d at 1079 n.3 (finding
standing to sue Tulsa County district court clerk for inability to obtain marriage licenses). Cf.
Kitchen, 755 F.3d at 1201 (We have no doubt that . . . plaintiffs possessed standing to sue the
Salt Lake County Clerk based on their inability to obtain marriage licenses from the Clerks
office.).
Even though the Oklahoma clerks that were sued in Bishop II were also employees of the
state district courts, Defendants argue that Kansas clerks in this case may not be sued in their
official capacities because of judicial immunity. Defendants contend that [t]he relief
requested against Defendants Hamilton and Lumbreras is beyond the Courts subject matter
jurisdiction because it is sought against state judicial officers, who are exempt from preliminary
injunctive relief under the plain language of 42 U.S.C. 1983, Buchheit v. Green, 705 F.3d 1157
Defendant Moser also asserts that Plaintiffs would have to sue other state officials to ensure
that the marriage licenses they receive have any legal value. In support of that argument he
asserts that [t]he relief ultimately granted in Bishop was a judgment against the State of
Oklahoma, which would be lacking in this case. Moser Response at 14. Moser is wrong.
Although the Bishop plaintiffs initially sued the State of Oklahoma, the district court
subsequently dismissed the State of Oklahoma as a nominal party to the case. See Bishop v.
U.S. ex rel. Holder, 962 F.Supp.2d 1252, 1260 (N.D. Okla. 2014). The State of Oklahoma is
nevertheless bound by the Bishop decision and the State of Kansas will likewise by bound by a
decision in this case because governmental officials were sued in their official capacity under
Ex parte Young, and an official-capacity suit is, in all respects other than name, to be treated as
a suit against the [governmental] entity . . . for the real party in interest is the entity. Kentucky v.
Graham, 473 U.S. 159, 166 (1985).
7
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(10th Cir. 2012), and Knox v. Bland, 632 F.3d 1290 (10th Cir. 2011). Moser Response, Doc.
14, p. 1 (bold in original). See also Clerks Response, Doc. 15, p. 5. Essentially, this argument
rests on the proposition that injunctive relief is barred by the Federal Courts Improvement Act of
1996. Moser Response, Doc. 14, pp. 12-13; Clerks Response, Doc. 15, p. 5.
Once again, Defendants are wrong. In 1996, Congress inserted into 1983 provisions to
immunize judicial officers from injunctive relief for their judicial acts without granting
declaratory relief first. Federal Courts Improvement Act of 1996, Pub. L. 104-317, 309(c).
Before 1996, judges were absolutely immune from lawsuits seeking damages based on actions
taken in their judicial capacity, but judges could be sued for injunctive relief under Pulliam v.
Allen, 466 U.S. 522 (1984). In 1996, Congress overruled Pulliam to extend immunity for actions
taken in a judicial capacity to suits for injunctive relief as well. See Sheldon Nahmod, Civil
Rights and Civil Liberties Litigation: The Law of Section 1983, 7:64-65 (4th ed. 2012) (West).
But both before and after 1996, the immunity provided for judicial acts has always been
limited to actions taken in the judges judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991)
(citing Forrester v. White, 484 U.S. 219, 227-29 (1988) and Stump v. Sparkman, 435 U.S. 349,
360 (1978)). In determining whether an act by a judge is judicial, thereby warranting absolute
immunity, we are to take a functional approach, for such immunity is justified and defined by
the functions it protects and serves, not by the person to whom it attaches. Bliven v. Hunt, 579
F.3d 204, 209-210 (2d Cir. 2009) (quoting Forrester, 484 U.S. at 227). [T]he factors
determining whether an act by a judge is a judicial one relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the expectations of the parties,
8
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i.e., whether they dealt with the judge in his judicial capacity. Stump v. Sparkman, 435 U.S.
349, 362 (1978). In the Federal Courts Improvement Act, Congress codified that distinction by
limiting immunity for injunctive relief in any action brought against a judicial officer for an
act or omission taken in such officers judicial capacity. 42 U.S.C. 1983 (emphasis added).
Even though marriage licenses are issued by a court clerk, issuing those licenses is a
ministerial act, not a judicial act that is immune from injunctive relief. Cf. Garner v. Green
991 F.2d 805 (Table), 1993 U.S. App. LEXIS 8612, *6 (10th Cir. 1993) (unpublished) (Because
the filing of documents is a ministerial act, the clerk is not absolutely immune from claims in that
regard.). Indeed, in the Oklahoma marriage litigation, the Tenth Circuit already found that the
issuance of marriage licenses by district court clerks is a ministerial act. Bishop I, 333 Fed.
Appx. at 365. After remand, the federal district court allowed plaintiffs to amend their complaint
to add as a party defendant the Tulsa County district court clerk who had denied the Bishop
couples application for a marriage license and, in its final judgment, permanently enjoined the
defendant district court clerks enforcement of Oklahomas constitutional and statutory
prohibitions on same-sex marriage. Bishop II, 760 F.3d at 1075-76. Because Kansass system
for issuing marriage licenses is virtually the same as Oklahomas, Plaintiffs respectfully request
that the Court find that the issuance of a marriage license in Kansas is a ministerial act and is
thus not subject to claims of absolute judicial immunity.
If the Court prefers, it could take a more analytical approach to the question by assessing
the factors determining whether an act by a judge is a judicial[.] Stump v. Sparkman, 435
U.S. at 362. In assessing those factors, courts must look to state law. Id. In addition, courts
9
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should specifically consider whether: (1) the offending action is a normal judicial function; (2)
it occurred in the judges courtroom or chambers; (3) the controversy involved a case pending
before the judge; and (4) the confrontation arose directly and immediately out of a visit to the
judge in his official capacity. Ammons v. Baldwin, 705 F. 2d 1445, 1447 (5th Cir. 1983)
(quoting Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir. 1982), cert. denied, 465 U.S. 1006
(1984)). The Court should also consider whether the act at issue is performed in a prescribed
manner in obedience to the mandate of legal authority, without regard to or the exercise of his
own judgment upon the propriety of the act being done. Cook v. Topeka, 654 P.2d 953, 957
(Kan. 1982) (holding, in context of 1983 claim, that routine recall of warrant upon payment of
traffic fine is wholly ministerial in nature) (quotation omitted).
In Kansas, the issuance of marriage licenses is not a judicial act; it is a classic ministerial
act. People applying for and obtaining marriage licenses deal primarily with deputy court clerks
in the clerks offices and generally not with judges. Certainly, the issuance of marriage licenses
involves neither judicial proceedings in courtrooms or in judges chambers nor any case or
controversy for judicial resolution. Under Kansas statutes, [t]he clerks of the district courts or
judges thereof . . . shall issue a marriage license, Kan. Stat. Ann. 23-2505(a), to people who
meet the four statutorily established eligibility requirements, specifically that they are over the
age of 18, that they are not closely related by blood, that they are not presently married to
another person, and that they are not the same sex as their chosen spouse, Kan. Stat. Ann. 232501, 2503, & 2505(c). Thus, because district court clerks issue marriage licenses in Kansas in
accordance with prescribed legal mandates and without exercising judicial judgment or
10
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discretion, the issuance of marriage licenses in Kansas is a ministerial act. In fact, in his recent
Administrative Order regarding the issuance of marriage licenses to same-sex couples in Douglas
County, Chief District Court Judge Fairchild specifically stated that [t]he court performs an
administrative function when it issues a marriage license. In exercising its administrative
functions the court has a different role than it does when it rules on a petition that has been filed
in this court as a contested matter. See Admin. Ord. 14-13, available at http://www.douglascounty.com/district_court/docs/pdf/adminorder_14-13.pdf.3
For these reasons, the 1996 amendment to 1983 does not bar the entry of injunctive
relief against Defendant Clerks with respect to the issuance of marriage licenses to same-sex
couples.4
d.
Declaratory and injunctive relief is available here.
In the remainder of their attack on Plaintiffs standing, Defendants produce a hodgepodge

of reasons for why injunctive and declaratory relief is somehow unavailable. Each of these
arguments can be dealt with summarily.
Other courts have noted that the issuance of marriage licenses is ministerial. See, e.g., U.S. ex
rel. Feldman v. City of New York, 808 F. Supp. 2d 641, 656-7 (S.D.N.Y. 2011) (noting the
issuance of a marriage license as an example of a ministerial act); Pedersen v. Burton, 400 F.
Supp. 960, 963 (D.D.C. 1975) (citing legislative report describing issuance of marriage license as
performance of a ministerial function).
4
For similar reasons, Plaintiffs are not seeking the equivalent of a federal mandamus order to
state court judges in the performance of their judicial duties. Moser Response at 11-12 (citing
Bucheit v. Green, 705 F.3d 1157 (10th Cir. 2012) and Knox v. Bland, 632 F.3d 1290, 1292 (10th
Cir. 2011)). They are seeking an injunction for the performance of a ministerial function that
happens to be performed by court clerks.
11
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Eleventh Amendment.
Eleventh Amendment immunity is not absolute and is subject to exceptions. Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). [U]nder Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), a plaintiff may bring suit against individual state
officers acting in their official capacities if the complaint alleges an ongoing violation of federal
law and the plaintiff seeks prospective relief. Id. Under Ex parte Young, certain officialcapacity suits are excepted from the doctrine of sovereign immunity as a way to vindicate federal
rights and, in the process, ensure the supremacy of federal law. Crowe & Dunlevy, P.C. v.
Stidham, 640 F. 3d 1140, 1156 (10th Cir. 2011). In application, Ex parte Young allows a court
to enjoin a state official from enforcing an unconstitutional statute. Cressman v. Thompson,
719 F. 3d 1139, 1146 n.8 (10th Cir. 2013).
Defendant Moser asserts that Plaintiffs have not brought a proper Ex parte Young suit
because instead of seeking prospective relief, Plaintiffs are ostensibly seeking to remedy the
past event of [the defendant district court clerks] refusal to issue marriage licenses. That is
absurd. Plaintiffs are not seeking to correct or seek damages from the failure to issue marriage
licenses in the past. Plaintiffs seek a preliminary injunction prohibiting Defendant Clerks from
enforcing the Kansass unconstitutional laws prohibiting same-sex marriage in the future.
Plaintiffs also seek prospective injunctive relief from Defendant Moser in his capacity as the
vital records registrar and custodian for Kansas. These remedies are not barred by the Eleventh
12
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Amendment and are, in fact, clearly available to the Court and to Plaintiffs under Ex parte
Young.5
Domestic relations exception.
The domestic relations exception is a narrow exception to federal courts diversity
jurisdiction that encompasses only cases involving the issuance of a divorce, alimony, or child
custody decree. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). It does not affect federal
courts federal question jurisdiction, Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d
943, 946-47 (9th Cir 2008) (collecting cases), and it does not affect constitutional challenges to
an underlying statutory scheme, Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1111 (10th Cir.
2000).
Anti-Injunction Act.
The Defendant Clerks assert that relief is barred by the Anti-Injunction Act because a
decision in favor of Plaintiffs would ostensibly have the effect of interfering with the mandamus
petition pending before the Kansas Supreme Court. But the Anti-Injunction Act does not apply
to claims under 42 U.S.C. 1983, see Mitchum v. Foster, 407 U.S. 225, 242 (1972), and the
Plaintiffs are not asking this Court to enjoin the state proceedings in any event. Plaintiffs are
simply asking this Court to rule on the merits of their own claims.
As part of any final judgment, Plaintiffs will also seek a declaratory judgment that the Kansas
constitutional and statutory prohibitions against same-sex marriage violate Plaintiffs federal
constitutional rights under the Due Process and Equal Protection Clauses of the Fourteenth
Amendment.
13
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II.
ABSTENTION IS NEITHER REQUIRED NOR APPROPRIATE.
Plaintiffs have addressed abstention in the supplemental brief filed on October 18, 2014.
Doc. 7. Plaintiffs here address a few specific issues raised by Defendants Responses.
Although Defendant Moser initially states that he does not assert that relief should be
denied under either [Younger or Pullman] abstention doctrines at this time, he goes on to
speculate that, in deciding the mandamus action now pending before the Supreme Court of
Kansas, that Court may recognize a right to appeal in favor of Plaintiffs, which would
according to Defendant Moser bar relief in the federal courts. Moser Response, Doc. 14, p. 16.
The Defendant seems to suggest this is grounds for the federal district court to abstain. But this
is essentially an argument that plaintiffs in cases brought under 1983 must exhaust other
available remedies. For more than fifty years, the Supreme Court has consistently and forcefully
rejected such contentions. See Patsy v. Board of Regents of Fla., 457 U.S. 496, 500 (1982).
Moreover, a federal courts obligation to hear and decide a case is virtually unflagging.
Parallel state-court proceedings do not detract from that obligation. Sprint Communications,
Inc. v. Jacobs, 134 S. Ct. 584, 591-92 (2013).
Defendant Clerks raise a new abstention doctrine, Burford abstention. In Burford v. Sun
Oil Co., the Supreme Court held that the lower federal court should have dismissed the federal
case because it involved complex questions of Texas oil and gas law and there was adequate
state court review of the complex state regulatory scheme based primarily on local factors. 319
U.S. 315, 325-34 (1943). That doctrine has nothing to do with the present case. Kansass
system of issuing marriage licenses is quite simple, and an injunction preventing the Defendant
14
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Clerks from enforcing Kansass laws prohibiting same-sex marriage will not interfere with that
scheme or with the Kansas Supreme Courts role of administrator of the state court system. As
the Tenth Circuit explained when it held that Burford abstention did not apply to a constitutional
challenge to Utahs adoption statutes:
Plaintiff's constitutional claim does not present difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the results in the case then at bar. Plaintiff's constitutional claim
instead requires the district court to determine whether a Utah statute violates
Plaintiff's federal constitutional rights. Plaintiff's claim therefore only asks the
district court to act within its area of expertise, rather than to invade the province
of the State. Accordingly, Burford abstention and related theories do not call for
avoiding a decision on the Plaintiff's constitutional claim for invalidation of the
Utah Adoption statutes.
Johnson, 226 F.3d at 113.
Underlying the Clerk Defendants argument about Burford abstention is the premise that
granting relief to Plaintiffs would interfere with the Kansas Supreme Courts goal of statewide
uniformity among clerks in all the counties. Clerks Response at 11. But the premise of that
argument is false. The Clerk Defendants in this case are being sued in their official capacities,
and a judgment against them would be binding on all other clerks in the Kansas Unified Court
system as a matter of privity and issue preclusion. See Spiess v. Meyers, 483 F. Supp. 2d 1082,
1089 (D. Kan. 2007) (privity exists between between government employees in their official
capacities); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (In the claim preclusion
context, governmental officials sued in their official capacities for actions taken in the course of
their duties are considered in privity with the governmental body.).
15
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Even if other clerks were not bound as a matter of privity, a preliminary injunction in
Plaintiffs favor would not prevent the Kansas Supreme Court from ensuring a uniform practice
among all clerks. It could simply order all clerks to follow the same uniform policy that this
Court has ordered based on the requirements of the Constitution. A state policy toward
uniformity cannot trump individuals ability to vindicate their federal constitutional rights. Wolf
v. Walker, 9 F. Supp. 3d 889, 889 (W.D .Wis. 2014) (rejecting Wisconsins argument that, in
order to ensure statewide uniformity plaintiffs must forfeit their case unless they join other
same-sex couples who wish to marry in every Wisconsin county or replead their case as a class
action)
Because no abstention doctrine applies to this case, plaintiffs respectfully urge the Court
to exercise its jurisdiction over this case and to decide the federal constitutional issue at the heart
of this case.
III.
PLAINTIFFS ARE ENTITLED TO A SPEEDY PRELIMINARY INJUNCTION
The Tenth Circuit has held that [a] state may not deny the issuance of a marriage license
to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in
the marriage union. Kitchen v. Herbert, 755 F.3d at 1199. See also Bishop II, 760 F.3d at 1080
(State bans on the licensing of same-sex marriage significantly burden the fundamental right to
marry).
In the face of this clear and unambiguous precedent, Defendant Moser makes the drawdropping assertion that [w]hen a circuit court decision is inconsistent with [State] Supreme
Court precedent and the [State] Constitution, there is no obligation to disregard the Constitution
and instead follow the erroneous circuit court decision. Id., p. 18, citing Circuit Judge Kellys
16
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dissents in Kitchen and Bishop II. Defendant further contends that [t]his Court is not compelled
to apply the conclusions reached in the Tenth Circuit cases relied on by plaintiffs in preference to
the conclusions reached in the case of In re Estate of Gardiner, 273 Kan. 191, 42 P.3d 120, cert.
denied sub nom, Gardiner v. Gardiner, 537 U.S. 825 (2002). Doc. 14, p. 17 (bold in original).6
The Defendants can make whatever arguments they wish in asking the Tenth Circuit to
grant rehearing en banc or asking the Supreme Court to accept certiorari. But they cannot
ignore Plaintiffs clearly established rights under existing precedent in the meantime. As Judge
Skavdahl so aptly made this point in his recent decision enjoining Wyomings ban on same-sex
marriage: It is not the desire or preference of this Court to, with the stroke of a pen, erase a
States legislative enactments. Nonetheless, the binding precedent of Kitchen and Bishop
mandate this result, and this Court will adhere to its Constitutional duties and abide by the rule of
law. Guzzo v. Mead, No. 14CV200SWS, 2014 WL 317797, at *9 (D. Wyo. Oct. 17, 2014).
In further support of their argument that the Court here should deny preliminary
injunctive relief, Defendants assert that [e]very federal court that has either granted a
preliminary injunction or a judgment on the merits in a same-sex marriage case has stayed the
effect of that decision to permit exhaustion of appeal rights. Moser Response, Doc. 14, p. 2. In
fact, however, ever since the Supreme Court denied certiorari of the marriage cases on October
6, 2014, every federal court has denied requests for a stay pending appeal and at most
Federal district courts are, of course, bound to follow the precedent of federal courts of appeals,
not state supreme courts. In any event, the Kansas Supreme Court did not address or consider
any federal constitutional arguments in Gardiner. That case has absolutely nothing to do with
this proceeding.
17
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provided an extremely short interim stay to allow defendants to seek emergency relief from a
higher court, which was also ultimately denied. See General Synod of the United Church of
Christ v. Resinger, No. 3:14cv00213MOCDLH, 2014 WL 5092288 (W.D.N.C. Oct. 10,
2014) (no stay); Hamby v. Parnell, No. 3:14cv00089TMB, 2014 WL 5089399, at *23 (D.
Alaska Oct. 12, 2014) (injunction with no stay), Fisher-Borne v. Smith, Nos. 1:12CV589,
1:14CV299, 2014 WL 5138914 (M.D.N.C. Oct. 14, 2014) (injunction with no stay); Majors v.
Horne, No. 2:14cv00518 JWS, 2014 WL 5286743, at *1 (D. Ariz. Oct. 17, 2014) (A stay of
this decision to allow defendants to appeal is not warranted); Connolly v. Jeanes, No. 2:14cv
00024, 2014 WL 5320642, at *1 (D. Ariz. Oct. 17, 2014) ([T]his court declines to stay the
effect of this order.); Guzzo v. Mead, No. 14CV200SWS, 2014 WL 317797, at *9 (D. Wyo.
Oct. 17, 2014) (temporary stay of one week). Indeed, the Supreme Court itself has denied
Idahos application for stay pending a petition for certiorari, Otter v. Latta, 14A374, 2014 WL
5094190 (U.S. Oct. 10, 2014), and Alaskas application for a stay pending appeal, Parnell v.
Hamby, 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014). These recent stay denials are a sharp
departure from the Supreme Courts previous actions of granting stays in marriage equality
cases. Because the injunctive relief ordered in these cases is now effective, Defendants
argument is wholly meritless. In fact, the trend actually counsels strongly in favor of this Court
issuing the preliminary injunctive relief Plaintiffs seek without delay.
18
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CONCLUSION
For all of these reasons, Plaintiffs respectfully ask the Court to enter a preliminary
injunction enjoining Defendants from enforcing the challenged Kansas laws prohibiting samesex marriage.
3601 Main Street
Tel. (816) 994-3311
Fax: (816) 756-0136
Dentons US, LLP
4520 Main Street
Suite 1100
816/460-2400
816/531-7545 (fax)
Joshua A. Block [admitted pro hac vice]
UNION FOUNDATION
New York, NY 10004
(212) 549-2593
jblock@aclu.org
19
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jeff.chanay@ksag.org; Steve R. Fabert, Asst. Attorney General, Steve.Fabert@ag.ks.gov,
attorney for Defendant Moser, and M.J. Willoughby, Asst. Attorney General,
MJ.Willoughby@ag.ks.gov, attorney for defendants Hamilton and Lumbreras.
20
Aplt. App. # 000124
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DITRANI,
Plaintiffs,
v.
)
)
)
)
)
)
)
and Environment,
)
)
th
)
capacity as Clerk of the District Court for the 7
)
)
)
)
Defendants. )
DEFENDANTS EXHIBITS IN OPPOSITION TO PLAINTIFFS

MOTION FOR PRELIMINARY INJUNCTON
Defendants submit the attached exhibits for this Courts consideration in connection with
Plaintiffs Motion for Preliminary Injunction, set for hearing on October 31, 2014. The exhibits
were previously provided to Plaintiffs counsel under separate cover.
1
Aplt. App. # 000125
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DEREK SCHMIDT
s/Steve R. Fabert
Tel: (785) 368-8420
Fax: (785) 296-6296
s/M.J. Willoughby
M.J. Willoughby #14059
Tel: (785) 296-2215
Fax: (785) 296-6296
This is to certify that on this 30th day of October, 2014, a true and correct copy of the above
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
2
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Aplt. App. # 000127
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Aplt. App. # 000128
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Aplt. App. # 000129
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Aplt. App. # 000130
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Aplt. App. # 000131
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Aplt. App. # 000132
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Aplt. App. # 000133
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Aplt. App. # 000134
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Aplt. App. # 000135
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Aplt. App. # 000136
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Aplt. App. # 000137
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Aplt. App. # 000138
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Aplt. App. # 000139
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Aplt. App. # 000140
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Aplt. App. # 000141
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Aplt. App. # 000142
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Aplt. App. # 000143
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Aplt. App. # 000144
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Aplt. App. # 000145
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Aplt. App. # 000146
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Aplt. App. # 000147
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Aplt. App. # 000148
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Aplt. App. # 000149
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Aplt. App. # 000150
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Aplt. App. # 000151
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Aplt. App. # 000152
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Aplt. App. # 000153
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Aplt. App. # 000154
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Aplt. App. # 000155
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Aplt. App. # 000156
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Aplt. App. # 000157
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Aplt. App. # 000159
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Aplt. App. # 000160
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Aplt. App. # 000161
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Aplt. App. # 000162
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Aplt. App. # 000163
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Aplt. App. # 000164
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Aplt. App. # 000165
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DITRANI,
Plaintiffs,
)
)
)
v.

)
)
ROBERT MOSER, M.D., in his official capacity

Capacity as Clerk of the District Court for the 7th
BERNIE LUMBRERAS, in her official capacity
Defendants.
)
)
)
)
)
)
)
)
)
)
-------------------------------- )
AFFIDAVIT OF BERNIE LUMBRERAS
STATE OF KANSAS
COUNTY OF SEDGWICK
) ss:
)
I, Bernie Lumbreras, being first duly sworn, on oath, depose and say that:
1. I am the Clerk of the District Court of Sedgwick County, Kansas, Eighteenth
Judicial District. I was appointed to this position on December 18, 2005. In that
capacity, I supervise deputy clerks in performing the functions imposed by law
on clerks of the district court in Kansas. My deputy clerks and I are judicial
officers of the State of Kansas and are employed by the State of Kansas as part of
the Kansas Judicial Branch.
2. Neither I nor the clerks operating under my supervision discriminate against any
person or operate under any sort of personal belief or animus. We perform our
duties in accordance with legal requirements as per K.S.A. 20-3102 and as
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communicated to us under the supervision of the Chief Judge, at this point, Chief
Judge James R. Fleetwood.
3. One of the functions of my office is to issue marriage licenses as per K.S.A.
2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may
be issued by either judges or clerks. In performing this function, I and the clerks
operating under my supervision act as an aide to the twenty-eight (28) judges of
the 18th Judicial District who would otherwise be performing this function.
4. If there is a question about whether a person is legally entitled to a marriage
license, the applicant is referred to a judge for determination.
5. I do not authorize persons to perform marriage rites; the Clerks have no role in
the function set forth in K.S.A. 2014 Supp. 23-2504.
6. Any determination as to the issuance of a license to Kerry Wilks or Donna
DiTrani was made by Chief Judge James R Fleetwood or Judge Eric Yost acting
in Chief Judge Fleetwood's absence. It was not made by me or by my clerks.
7. My office is also in compliance with the Supreme Court's October 10,2014,
Order in State ex rei. Schmidt v. Moriarty which is consistent with the directions
of Chief Judge Fleetwood.
8. Neither I nor my clerks have any role in deciding whether a person is authorized
to file a joint tax return in Kansas.
9. Neither I nor my clerks have any role in determining whether a person is entitled
to inherit property through intestate succession in Kansas.
FURTHER AFFIANT SAITH NOT.
Bernie Lumbreras
Subscribed and Sworn to before the undersigned this 0"
9t t, day of October, 2014.

-
C~-ad
No
ubc
My Appointment Expires: :? -/-18
CATHY STEPPPRATT
NOTARY PUBLIC
STATE OF KANSAS
My Appl Exp .
.3 -1-18
Aplt. App. # 000260
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DITRANI,
Plaintiffs,
v.
)
)
)
)
)
)
)
and Environment and
)
)
)
)
)
)
)
Defendants. )
SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTON
Defendant Robert Moser, M.D. hereby submits the following additional authorities in
opposition to plaintiffs motion for a preliminary injunction, based on the conflict between the
proposed preliminary injunction and the challenged state court decisions that allegedly are the
source of plaintiffs grievances:
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d
454, (2005) prevents a federal district court from granting direct relief from an adverse state court
decision, even if the state action is alleged to be unconstitutional, because such relief is only
available by way of a petition for certiorari to the United States Supreme Court. To the same effect
1
Aplt. App. # 000261
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see also In re Kline, 472 B.R. 98, 105 (B.A.P. 10th Cir. 2012) aff'd, 514 F. App'x 810, 2013 WL
1668342 (10th Cir. 2013) (If success on the claims alleged in federal court would necessarily
require the federal court to review and reject the state court's judgment, RookerFeldman
applies.); Kenmen Eng'g v. City of Union, 314 F.3d 468 (10th Cir. 2002) (rule applicable to
temporary orders as well as final judgments); Mounkes v. Conklin, 922 F. Supp. 1501, 1510 (D.
Kan. 1996) (rule prohibits review of state judicial application of law to particular facts, and allows
only generalized challenges to rule itself).
Plaintiffs are limited to challenging ongoing violations of federal rights by the named
defendants under the rule of Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993). Any ongoing refusal to issue marriage licenses
to same-sex couples in Kansas is compelled by the temporary restraining order issued by the
Kansas Supreme Court in the case of State ex rel. Schmidt v. Moriarty, case number 112,590. To
obtain relief by way of temporary injunction, this Court must necessarily set aside that temporary
restraining order, or limit it to avoid its application to these plaintiffs. That relief requires this
Court to act, in effect, as an appellate court reviewing the decision of the Kansas Supreme Court.
Because no such power of review exists, the preliminary injunction must be denied.
In the alternative, the relief requested would require this Court to act as a source of
appellate review over the judicial determinations made by the chief judges of the Seventh and
Eighteenth judicial districts, determining that these plaintiffs were not lawfully entitled to the
issuance of marriage licenses. No such right of review exists, under D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983). The relief obtainable in this
action can consist of nothing more than a declaratory judgment concerning the constitutionality of
2
Aplt. App. # 000262
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the general laws of Kansas, not a determination that the laws are being applied to these plaintiffs
unlawfully. Since injunctive relief is dependent on a reversal of the decision previously made by
the court of each district involved, it cannot be granted.
CONCLUSION
For all of the above stated reasons and for the reasons previously offered the motion for a
preliminary injunction should be denied.
DEREK SCHMIDT
s/Steve R. Fabert
Tel: (785) 368-8420
Fax: (785) 296-6296
This is to certify that on this 31st day of October, 2014, a true and correct copy of the above
jblock@aclu.org.
s/Steve R. Fabert
Steve R. Fabert
3
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KAIL MARIE, et al.,
Plaintiffs,
v.
Case No. 14-cv-02518-DDC/TJJ

capacity as Secretary of the Kansas
Department of Health and Environment,
et al.,
Defendants.
MEMORANDUM AND ORDER

Plaintiffs in this lawsuit seek injunctive and declaratory relief under 42 U.S.C. 1983.
Specifically, they ask the Court to declare unconstitutional and enjoin defendants from enforcing
certain provisions of Kansas law that prohibit plaintiffs and other same-sex couples from
marrying.1 Plaintiffs also ask the Court to order defendants (and their officers, employees, and
agents) to issue marriage licenses to same-sex couples on the same terms they apply to couples
consisting of a man and a woman, and to recognize marriages validly entered into by plaintiffs.
The case, now pending on plaintiffs motion for a preliminary injunction (Doc. 3),
requires the Court to decide whether Kansas laws banning same-sex marriages violate the
Constitution of the United States. Judging the constitutionality of democratically enacted laws is
among the gravest and most delicate enterprises a federal court ever undertakes.2 But just as
Plaintiffs Complaint targets Article 15, 16 of the Kansas Constitution, K.S.A. 23-2501
and 23-2508 and any other Kansas statute, law, policy or practice.
2
Blodgett v. Holden, 275 U.S. 142, 147-48 (1927) (Holmes, J., concurring).
1
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surely, following precedent is a core component of the rule of law. When the Supreme Court or
the Tenth Circuit has established a clear rule of law, our Court must follow it.3
Defendants have argued that a 1972 Supreme Court decision controls the outcome here.
The Tenth Circuit has considered this proposition and squarely rejected it.4 Consequently, this
Order applies the following rule, adopted by the Tenth Circuit in Kitchen v. Herbert, to the
Kansas facts:
We hold that the Fourteenth Amendment [to the United States Constitution]
protects the fundamental right to marry, establish a family, raise children, and
enjoy the full protection of a states marital laws. A state may not deny the
issuance of a marriage license to two persons, or refuse to recognize their
marriage, based solely upon the sex of the persons in the marriage union.5
Because Kansas constitution and statutes indeed do what Kitchen forbids, the Court concludes
that Kansas same-sex marriage ban violates the Fourteenth Amendment to the Constitution.
Accordingly, the Court grants plaintiffs request for preliminary relief and enters the injunction
described at the end of this Order. The following discussion explains the rationale for the
Courts decision and addresses the litany of defenses asserted by defendants.
Background
Plaintiffs are two same-sex couples who wish to marry in the state of Kansas.
Defendants are the Secretary of the Kansas Department of Health and Environment and the
See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (quoted in
Kitchen v. Herbert, 755 F.3d 1193, 1232 (10th Cir. 2014) (Kelly, J., dissenting)); United States v.
Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990) (when no Supreme Court decision establishes
controlling precedent, a district court must follow the precedent of [its] circuit, regardless of its
views [about] the advantages of precedent from elsewhere).
4
Kitchen, 755 F.3d at 1208 (rejecting argument that Baker v. Nelson, 409 U.S. 810 (1972)
controls challenges to the constitutionality of bans against same-sex marriage), cert. denied, No.
14-124, 2014 WL 3841263 (U.S. Oct. 6, 2014).
5
Id. at 1199.
2
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Clerks of the Sedgwick and Douglas County District Courts. Plaintiffs affidavits establish the
facts stated below. Defendants never contest the factual accuracy of the affidavits, so the Court
accepts them as true for the purpose of the current motion. Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114, 1146 (10th Cir. 2013) (a court deems uncontested facts established by affidavit as
admitted for purpose of deciding a motion for preliminary injunction) (citations and subsequent
history omitted).
A. Plaintiffs
1. Kail Marie and Michelle Brown
Plaintiffs Kail Marie and Michelle Brown live together in Lecompton, Kansas, which is
located in Douglas County. Ms. Marie and Ms. Brown assert they have lived in a committed
relationship for twenty years. Except that they both are women, Ms. Marie and Ms. Brown meet
all other qualifications for marriage in the state of Kansas. On October 8, 2012, Ms. Marie
appeared at the office of the Clerk of the Douglas County District Court to apply for a marriage
license so that she and Ms. Brown could marry. The deputy clerk, working under the
supervision of Clerk Hamilton, asked for Ms. Marie and Ms. Browns personal information and
identification, and wrote down their information on an application form. The deputy clerk then
gave the form to Ms. Marie and instructed her to return it no sooner than Monday, October 13,
after Kansas statutory three-day waiting period for issuing a marriage license had expired.
The next day, Chief Judge Robert Fairchild of the Seventh Judicial District, which
consists of Douglas County, issued Administrative Order 14-13. In pertinent part, it states:
The court performs an administrative function when it issues a marriage
license. . . . The Courts role in administrative matters is to apply and follow the
existing laws of the State of Kansas. Recently, the United States Supreme Court
declined to review several cases in which the Circuit Courts held that similar
provisions contained in the constitutions of other states violate the United States
Constitution. Included in these cases were two cases from the Tenth Circuit Court
3
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of Appeals. While Kansas is [] within the jurisdiction of the Tenth Circuit, none
of these cases involved Article 15, 16 of the Kansas Constitution. This court
may not make a determination as to the validity of this constitutional provision
without a judiciable case before it concerning the courts issuance of or failure to
issue a marriage license.
Seventh Judicial District Administrative Order 14-13 (Doc. 23-7 at 3-4). Plaintiffs never say
whether Ms. Marie submitted the marriage application or whether the clerk actually denied it, but
Judge Fairchilds order makes it clear: the clerk would have denied Ms. Maries application.
2. Kerry Wilks and Donna DiTrani
Plaintiffs Kerry Wilks and Donna DiTrani assert they have lived in a committed
relationship for five years. The two reside together in Wichita, Kansas, in Sedgwick County.
Except that they both are women, Ms. Wilks and Ms. DiTrani meet all other qualifications for
marriage in the state of Kansas. On October 6, 2014, Ms. Wilks and Ms. DiTrani appeared in
person at the office of the Clerk of the Sedgwick County District Court to apply for a marriage
license. A deputy clerk and the clerks supervisorboth working under the supervision of Clerk
Lumbrerasrefused to give plaintiffs an application for a marriage license because they sought
to enter a same-sex marriage. Plaintiffs returned to the office of the Clerk of the Sedgwick
County District Court on October 7 and October 8. Each time, a deputy clerk refused to give
Ms. Wilks and Ms. DiTrani an application for a marriage license.
On October 9, 2014, Ms. Wilks and Ms. DiTrani again returned to the office of the Clerk
of the Sedgwick County District Court to apply for a marriage license. This time, a deputy clerk
asked them for pertinent information and wrote it down on a marriage application form, which
the two signed under oath. After Ms. Wilks and Ms. DiTrani completed and submitted the
marriage license application form, the deputy clerkreading from a prepared statement
informed them that their application was denied. The deputy clerk announced that same-sex
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marriage violates provisions of the Kansas Constitution, and that the Sedgwick County District
Court would not issue marriage licenses to same-sex couples until the Supreme Court otherwise
rules differently.
B. Defendants
1. Robert Moser, M.D.
Defendant Robert Moser is the Secretary of the Kansas Department of Health and
Environment. Secretary Moser is responsible for directing Kansas system of vital records, and
supervising and controlling the activities of personnel who operate the system of vital records.
As part of his duties, Secretary Moser furnishes forms for marriage licenses, marriage
certificates, marriage license worksheets and applications for marriage licenses used throughout
Kansas; maintains a publicly available vital records index of marriages; and publishes aggregate
data on the number of marriages occurring in the state of Kansas. Secretary Moser is also
responsible for ensuring that all of these functions comply with Kansas law, including those that
prohibit same-sex couples from marrying. Plaintiffs believe that Secretary Mosers
responsibilities include furnishing forms that exclude same-sex couples from marriage by
requiring applicants to designate a bride and a groom. Plaintiffs name Secretary Moser in
his official capacity, and allege that he acted under color of state law at all relevant times.
2. Douglas Hamilton
Defendant Douglas Hamilton is the Clerk of the District Court for Kansas Seventh
Judicial District (Douglas County). Mr. Hamiltons responsibilities as Clerk of the Court
include: issuing marriage licenses; requiring couples who contemplate marriage to swear under
oath to information required for marriage records; collecting a tax on each marriage license;
authorizing qualified ministers to perform marriage rites; filing, indexing and preserving
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marriage licenses after the officiants return them to the court; forwarding records of each
marriage to the Kansas Department of Health and Environment; and correcting and updating
marriage records. Mr. Hamilton must ensure that he performs each of these functions in
compliance with all applicable Kansas laws, including the prohibition against same-sex
marriage. Plaintiffs name Mr. Hamilton in his official capacity, and allege that he acted under
color of state law at all times relevant to this suit.
3. Bernie Lumbreras
Defendant Bernie Lumbreras is the Clerk of the District Court for Kansas Eighteenth
Judicial District (Sedgwick County). Ms. Lumbreras holds the same position in Sedgwick
County as Mr. Hamilton holds in Douglas County, and is responsible for administering the same
marriage-related functions. When she performs these functions, Ms. Lumbreras also must ensure
that each of these functions complies with Kansas law, including the same-sex marriage ban.
Plaintiffs allege that the deputy clerk who denied Ms. Wilks and Ms. DiTranis marriage license
application worked under the direction and supervision of Ms. Lumbreras. Plaintiffs name Ms.
Lumbreras in her official capacity, and allege that she acted under color of state law at all times
relevant to this suit.
C. Challenged Laws
Plaintiffs contend the Court should declare the state laws banning same-sex marriages in
Kansas invalid under the Fourteenth Amendment to the United States Constitution. Plaintiffs
specifically challenge Article 15, 16 of the Kansas Constitution and K.S.A. 23-2501 and 232508, but also seek to enjoin any other Kansas statute, law, policy, or practice that excludes
[p]laintiffs and other same-sex couples from marriage. Doc. 4 at 1. Article 15, 16 of the
Kansas Constitution provides:
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(a) The marriage contract is to be considered in law as a civil contract. Marriage

shall be constituted by one man and one woman only. All other marriages are
declared to be contrary to the public policy of this state and are void.
(b) No relationship, other than a marriage, shall be recognized by the state as
entitling the parties to the rights or incidents of marriage.
K.S.A. 23-2501 codifies Kansas same-sex marriage prohibition as part of the states statutes,
providing:
The marriage contract is to be considered in law as a civil contract between two
parties who are of opposite sex. All other marriages are declared to be contrary to
the public policy of this state and are void. The consent of the parties is essential.
The marriage ceremony may be regarded either as a civil ceremony or as a
religious sacrament, but the marriage relation shall only be entered into,
maintained or abrogated as provided by law.
By their plain terms, Article 15, 16 of the Kansas Constitution and K.S.A. 23-2501 prohibit
same-sex couples from marrying. But K.S.A. 23-2501 also declares all other [non-opposite
sex] marriages . . . contrary to the public policy of this state and . . . void. K.S.A. 23-2508
extends this rule to same-sex marriages performed under the laws of another state:
All marriages contracted without this state, which would be valid by the laws of
the country in which the same were contracted, shall be valid in all courts and
places in this state. It is the strong public policy of this state only to recognize as
valid marriages from other states that are between a man and a woman.
When read together, K.S.A. 23-2501 and 23-2508 dictate a choice-of-law rule that
prevents Kansas from recognizing any same-sex marriages entered in other states, even if the
marriage is otherwise valid under the laws of the state where it was performed. Thus, Kansas
law both prohibits same-sex couples from marrying and refuses to recognize same-sex marriages
performed consistent with the laws of other states. Plaintiffs Complaint challenges both features
of Kansas marriage laws.
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Analysis
I.
Jurisdiction and Justiciability

Before a federal court can reach the merits of any case, it must determine whether it has
jurisdiction to hear the case. Here, this exercise consists of two related parts. First, does the
Court have subject matter jurisdiction to decide the claims presented in the Complaint? Title 28
U.S.C. 1331, among other statutes, answers this question by conferring jurisdiction on federal
courts to decide questions arising under the Constitution of the United States. Plaintiffs claims
here easily fall within this statutes grant of jurisdiction. This leads to the second piece of the
analysis: Do plaintiffs have standing to pursue the claims they assert in their Complaint?
A. Standing
Article III of the Constitution limits the jurisdiction of federal courts to actual cases or
controversies. Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 756 (10th
Cir. 2010). Standing is an indispensable component of the Courts jurisdiction and plaintiffs
bear the burden to show the existence of an actual Article III case or controversy. Id. at 756.
The Court must consider standing issues sua sponte to ensure the existence of an Article III case
or controversy. Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009).
To establish Article III standing, a plaintiff must show that (1) he or she has suffered an
injury in fact; (2) the injury is fairly traceable to the challenged action of the defendant; and,
(3) it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (citations and internal quotation marks omitted). Plaintiffs
who sue public officials can satisfy the causation and redressability requirementsparts (2) and
(3) of this standardby demonstrating a meaningful nexus between the defendant and the
asserted injury. Bronson v. Swensen, 500 F.3d 1099, 1111-12 (10th Cir. 2007).
Aplt. App. # 000271
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Plaintiffs facts, ones defendants do not challenge, assert that Kansas laws banning
same-sex marriage prevented the two court clerks from issuing marriage licenses to them. These
undisputed facts satisfy all three parts of Lujans test.
As it pertains to Clerks Lumbreras and Hamilton, these facts, first, establish that plaintiffs
suffered an actual (in fact) injury when the Clerks, acting on account of state law, refused to
issue marriage licenses to plaintiffs. Second, this injury is fairly traceable to Kansas laws.
Chief Judge Fairchilds Administrative Order 14-13 explains why the license did not issue to
plaintiffs Marie and Brown. Likewise, the prepared statement read by the Sedgwick County
deputy clerk reveals that Kansas ban was the only reason the clerk refused to issue a license to
plaintiffs Wilks and DiTrani. And last, common logic establishes that the relief sought by
plaintiffs, if granted, would redress plaintiffs injuries. The Clerks refused to issue licenses
because of Kansas same-sex marriage ban. It stands to reason that enjoining enforcement of this
ban would redress plaintiffs injuries by removing the barrier to issuance of licenses.
The standing analysis of the claim against Secretary Moser is more muted. The
Complaint asserts that Secretary Moser, in his official duties, ensures compliance with Kansas
marriage laws, including the ban against same-sex marriage, and issues forms that district court
clerks and other governmental officials use to record lawful, valid marriages. Plaintiffs also
allege that Secretary Moser controls the forms that governmental workers distribute to marriage
license applicants. This includes, plaintiffs assert, a form requiring license applicants to identify
one applicant as the bride and the other as the groom. Secretary Mosers response to
plaintiffs motion papers never disputes these facts and the Court concludes they satisfy Lujans
three-part standing test. That is, they establish a prima facie case that Secretary Moser has
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caused at least some aspect of plaintiffs injury, that at least part of their injury is traceable to the
Secretary, and the relief requested would redress some aspect of plaintiffs injury.6
Defendants argue that no standing can exist because they lack the wherewithal to force
other state officials to recognize plaintiffs same-sex marriages, even if licenses are issued. This
argument misses the point. Lujans formulation does not require a plaintiff to show that granting
the requested relief will redress every aspect of his or her injury. In equal protection cases, a
plaintiff must show only that a favorable ruling would remove a barrier imposing unequal
treatment. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla.,
508 U.S. 656, 666 (1993) (The injury in fact in an equal protection case . . . is the denial of
equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain
the benefit.) (citing Turner v. Fouche, 396 U.S. 346, 362 (1970)). Plaintiffs here have made a
prima facie showing that the relief they seek would redress aspects of their licensing claims.
This is sufficient to satisfy Article IIIs standing requirement.
Secretary Moser raises a similar redressability issue, arguing that executive branch
officials are not proper defendants because employees of the Kansas judiciary issue and
administer marriage licenses. Doc. 14 at 13. Secretary Moser contends that he merely is a
records custodian and has neither supervisory authority over judicial officials who issue
marriage licenses nor any other involvement administering marriage laws. Defendants rely on
the Tenth Circuits first decision in Bishop, where the court concluded that the general duty of
The standing requirement is judged by the claims asserted in the Complaint. While they are not
germane to plaintiffs motion for preliminary relief, the Complaint also asserts recognition
claims, i.e., claims seeking to require defendants to recognize plaintiffs marriages once licenses
have issued and plaintiffs have married. Kansas law shows that Secretary Moser is significantly
involved with recognition of marriage in Kansas. See K.S.A. 23-2512 (requiring him to issue,
on request, marriage certificates that constitute prima facie evidence of two persons status as a
married couple).
10
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the Governor and Attorney General to enforce Oklahomas laws lacked sufficient causal
connection to satisfy the standing requirement. Bishop v. Okla., 333 F. Appx 361, 365 (10th
Cir. 2009). But the present case against Secretary Moser is materially different.
Among other things, Kansas statutes make Secretary Moser responsible for the
following marriage-related activities: supervising the registration of all marriages (K.S.A. 232507); supplying marriage certificate forms to district courts (K.S.A. 23-2509); and
maintaining an index of marriage records and providing certified copies of those records on
request (K.S.A. 23-2512). Secretary Mosers records play an important role in the recognition
aspect of plaintiffs claims. When Secretary Moser distributes certified copies of marriage
licenses kept under his supervision, those copies constitute prima facie evidence of the marriages
in all courts and for all purposes. See K.S.A. 23-2512. In short, when Secretary Moser
issues a marriage certificate he creates a rebuttable presumption that persons listed in that
certificate are married.7
Finally, where a plaintiff seeks injunctive, as opposed to monetary relief against highlevel state officials, no direct and personal involvement is required to subject them to the
equitable jurisdiction of the court. Hauenstein ex rel. Switzer v. Okla. ex rel. Okla. Dept of
Human Servs., No. CIV-10-940-M, 2011 WL 1900398, at *4 (W.D. Okla. May 19, 2011)
(quoting Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985)). In other words, plaintiffs
7
The parties dispute the significance of Secretary Mosers role in promulgating marriage license
forms that require applicants to specify a bride and a groom. Docs. 14 at 2, 20 at 5-6. At
least two cases have held that the state official responsible for marriage license forms that
exclude same-sex couples is a proper defendant in a case challenging a states same-sex marriage
laws. Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014) (subsequent history omitted)
(Virginias Registrar of Vital Records was a proper defendant because she promulgated marriage
license application forms); Wolf v. Walker, No. 14-CV-64-BBC, 2014 WL 1729098, at *4 (W.D.
Wis. Apr. 30, 2014) (Wisconsin state Registrar was a proper defendant because of his official
duty to prescribe forms for blank applications, statement, consent of parents, affidavits,
documents and other forms related to acquiring a marriage license).
11
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need not establish that Secretary Moser personally denied their marriage license applications so
long as he would play a role in providing their requested relief. See Wolf, 2014 WL 1729098, at
*4. Given Secretary Mosers responsibility for marriage-related enabling and registration
functions, he has a sufficiently prominent connection to the relief sought by the Complaint to
justify including him as a defendant.
But the standing analysis differs for plaintiffs claim seeking to recognize same-sex
couples married outside Kansas. For this claim, plaintiffs have failed to establish Article III
standing. Neither of the plaintiff couples assert that they entered a valid marriage in another
state that Kansas refuses to recognize. Nor do they even allege that they sought to marry in
another state and have that marriage recognized in Kansas. Rather, both couples seek to marry in
Kansas and under the laws of Kansas. Doc. 1 at 15. In sum, plaintiffs have not alleged an
injury in fact attributable to the non-recognition aspect of Kansas same-sex marriage ban. This
case differs from Kitchen and Bishop because both of those cases involved at least one same-sex
couple who had married under the laws of another state. Bishop v. Smith, 760 F.3d 1070, 1075
(10th Cir. 2014) cert. denied, No. 14-136, 2014 WL 3854318 (U.S. Oct. 6, 2014); Kitchen, 755
F.3d at 1199.
In their Amicus Brief, Phillip and Sandra Unruh assert that the Court may not decide the
constitutionality of Kansas same-sex marriage ban as applied to male, same-sex couples because
the only plaintiffs are two female, same-sex couples. Doc. 22 at 7-8. This argument is a clever
use of the facts but, ultimately, it fails to persuade the Court.8 The Court construes plaintiffs
Complaint to allege that Kansas laws banning same-sex marriage are ones that are
8
In their Amicus Brief, the Unruhs assert a number of other arguments about the wisdom and
constitutionality of Kansas same-sex marriage ban. The Court does not address those arguments
individually because the Tenth Circuits decisions in Kitchen and Bishop have decided the issues
they raise in their brief.
12
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unconstitutional on their face (as opposed to a claim challenging the way that Kansas has applied
those laws to them). A claim is a facial challenge when it is not limited to plaintiffs particular
case, but challenges application of the law more broadly. John Doe No. 1 v. Reed, 561 U.S.
186, 194 (2010). If plaintiffs succeed in establishing no circumstances exist under which Kansas
could apply its same-sex marriage ban permissibly, the Court may invalidate the laws in their
entirety, including their application to male, same-sex couples. Doe v. City of Albuquerque, 667
F.3d 1111, 1127 (10th Cir. 2012) ([A] successful facial attack means the statute is wholly
invalid and cannot be applied to anyone.) (quoting Ezell v. City of Chicago, 651 F.3d 684, 69899 (7th Cir. 2011))
In sum, plaintiffs Complaint asserts sufficient facts and claims to satisfy all three
components of Lujans standard. Consequently, the Court concludes that an actual case or
controversy exists between all four plaintiffs and all three defendants.
B. Sovereign Immunity
Defendants next assert that the Eleventh Amendment and 42 U.S.C. 1983 prohibit a
federal court from issuing injunctive relief against a state judicial officer. Docs. 14 at 10-14, 15
at 5-7. Defendants advance three principal arguments as support for this proposition.
First, the two Clerk defendants argue that 42 U.S.C. 1983 expressly prohibits injunctive
relief against judicial officers. Supporting their argument, defendants cite the plain text of
1983, which provides:
Every person who, under color of any statute . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officers judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
13
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(emphasis added). Defendants correctly point out that the Clerks are judicial officers for
purposes of the judicial immunity provision of 1983. Lundahl v. Zimmer, 296 F.3d 936, 939
(10th Cir. 2002). However, 1983 contains a significant caveatthe acts or omissions at
issue must be ones taken in the officers judicial capacity. Id.; Mireles v. Waco, 502 U.S. 9, 11
(1991); 42 U.S.C. 1983. Thus, to determine whether judicial immunity applies to the Clerks,
the Court must determine whether issuing marriage licenses constitutes a judicial act.
In determining whether an act by a judge [or here, a clerk of the judicial system] is
judicial, thereby warranting absolute immunity, [courts] are to take a functional approach, for
such immunity is justified and defined by the functions it protects and serves, not by the person
to whom it attaches. Bliven v. Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009) (quoting Forrester v.
White, 484 U.S. 219, 227 (1988)) (emphasis in original). [T]he factors determining whether an
act by a judge is a judicial one relate to the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt
with the judge in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362 (1978). Kansas
law distinguishes between a clerks judicial and ministerial functions by asking whether a
statute imposes a duty upon the clerk to act in a certain way leaving the clerk no discretion.
Cook v. City of Topeka, 654 P.2d 953, 957 (Kan. 1982).
Judged by these criteria, the issuance of marriage licenses under Kansas law is a
ministerial act, not a judicial act. When K.S.A. 23-2505 describes the Clerks duty to issue
marriage licenses, the statute uses mandatory language and does not allow for any discretion by
the Clerks. Id. 23-2505(a) (The clerks of the district courts or judges thereof, when applied to
for a marriage license by any person who is one of the parties to the proposed marriage and who
is legally entitled to a marriage license, shall issue a marriage license . . . .) (emphasis added).
14
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Thus, if applicants for a marriage license meet the statutory qualifications for marriage, the clerk
has no discretion to deny them a marriage license.
Moreover, Chief Judge Fairchilds Administrative Order in Douglas County leaves no
doubt that Kansas judges regard issuing marriage licenses as a ministerial and not a judicial
function. When his Administrative Order explained why Clerk Hamilton was not issuing a
marriage license to plaintiffs Marie and Brown, he wrote, [t]he court performs an administrative
function when it issues a marriage license . . . . The Courts role in administrative matters is to
apply and follow the existing laws of the State of Kansas. Seventh Judicial District
Administrative Order 14-13 (Doc. 23-7 at 3). Indeed, as Chief Judge Fairchild explained, no
same-sex marriage licenses could issue despite the Tenth Circuits decisions in Kitchen and
Bishop because issuing marriage licenses is not a judicial act. Id. (This court may not make a
determination as to the validity of this constitutional provision without a justiciable case before it
concerning the courts issuance of or failure to issue a marriage license.).
The Tenth Circuit reached the same conclusion during the first Bishop appeal. 333 F.
Appx at 365. It recognized, under laws similar to Kansas, that Oklahoma district court clerks
perform a ministerial function when they issue marriage licenses. Id. By the time the case
returned to the Tenth Circuit following remand, plaintiffs had added district court clerks as
defendants. Bishop, 760 F.3d at 1075. The Tenth Circuit confirmed that the clerks function
administering marriage licenses was a ministerial one. Id. at 1092 ([Clerks] are responsible for
faithfully applying Oklahoma law, and Oklahoma law clearly instructs both of them to withhold
marital status from same-sex couples.). Judicial immunity under 42 U.S.C. 1983, therefore,
does not apply.
15
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Defendants second immunity argument contends that plaintiffs seek retroactive relief,
which, they assert, the Eleventh Amendment does not allow against state officials acting in their
official capacities. Generally, the Eleventh Amendment bars suits brought by individuals against
state officials acting in their official capacities. Harris v. Owens, 264 F.3d 1282, 1289 (10th Cir.
2001). However, under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may bring suit against
individual state officers acting in their official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective relief. Muscogee (Creek) Nation v.
Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012) (citations omitted). If both aspects of this test are
met, Ex parte Young allows a court to enjoin a state official from enforcing an unconstitutional
statute. Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013).
Defendant Moser asserts that plaintiffs have failed to bring a proper Ex parte Young suit
because plaintiffs only seek to remedy a past refusal to issue marriage licenses instead of seeking
prospective relief for an ongoing deprivation of their constitutional rights. The Court disagrees.
Plaintiffs are not seeking to correct or collect damages for the Clerks inability to issue marriage
licenses in the past. Instead, plaintiffs seek a preliminary and permanent injunction prohibiting
the Clerks from enforcing the Kansas same-sex marriage ban in the future. As a result, the
concern protected by the Eleventh Amendments ban against retroactive relieffederal courts
awarding monetary damages that states must pay from their general revenuesis not implicated.
See Edelman v. Jordan, 415 U.S. 651, 664-65 (1974). The Court concludes that plaintiffs seek
prospective relief for an ongoing deprivation of their constitutional rights. As such, their
requested relief falls within the Ex parte Young exception to sovereign immunity.
Last, defendants contend that the Anti-Injunction Act, 28 U.S.C. 2283, prohibits the
Court from enjoining them. Defendants argument reasons that an injunction prohibiting them
16
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from enforcing Kansas ban against same-sex marriages would interfere with a stay order entered
by the Kansas Supreme Court in State of Kansas ex rel. Schmidt v. Moriarity, No. 112,590 (Kan.
Oct. 10, 2014) (contained in record as Doc. 14-1). This argument ignores an important exception
to the Anti-Injunction Act. The Anti-Injunction Act provides, A court of the United States may
not grant an injunction to stay proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its
judgments. 28 U.S.C. 2283 (emphasis added). The Supreme Court has held that a suit
seeking to enjoin deprivation of constitutional rights under 42 U.S.C. 1983 falls within the
expressly authorized exception to the acts general rule. See Mitchum v. Foster, 407 U.S. 225,
242-43 (1972). Likewise, plaintiffs suit here falls squarely within this exception, negating
defendants argument under this act.
Defendants persist, however. They argue that even if the Anti-Injunction Act does not
apply directly, the requested injunction nonetheless implicates the policies the act protects. This
argument also relies on the stay order entered by the Kansas Supreme Court in Moriarity, (Doc.
14-1). While defendants argument is a colorable one, it is miscast as one under the AntiInjunction Act. The federal courts have addressed this concern under the rubric of the Younger
abstention doctrine, as applied to 1983 cases, and not as a concern predicated on the AntiInjunction Act. See Erwin Chemerinsky, Federal Jurisdiction 770 (6th ed. 2012). Consistent
with this approach, the Court addresses the substance of defendants argument as part of its
discussion of abstention doctrines, below at pages 18-26.
C. Domestic Relations Exception
Defendant Moser asserts that the Court should decline jurisdiction because states have
exclusive control over domestic relations. Secretary Moser cites United States v. Windsor,
17
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__U.S.__, 133 S. Ct. 2675 (2013) for two propositions in support of this assertion: that states
have exclusive control over domestic relations; and no federal law may contradict a states
definition of marriage.
Secretary Mosers argument misapprehends Windsor. Windsor held that the federal
government may not give unequal treatment to participants in same-sex marriages recognized by
states that permit same-sex marriage as a matter of state law. 133 S. Ct. at 2795-96. Moreover,
Windsor made clear that although regulation of domestic relations is an area that has long been
regarded as a virtually exclusive province of the states, state marriage laws of course, must
respect the constitutional rights of persons. Id. at 2691 (citing Loving v. Virginia, 388 U.S. 1
(1967) (internal quotations and further citations omitted)).
The domestic relations exception Secretary Moser invokes is a narrow exception to
federal court diversity jurisdiction and it encompasses only cases involving the issuance of a
divorce, alimony, or child custody decree. Ankenbrandt v. Richards, 504 U.S. 689, 692, 704
(1992). This exception does not apply to cases like this one, where a federal court has
jurisdiction over a case because that case presents a federal question. Atwood v. Fort Peck
Tribal Court Assiniboine, 513 F.3d 943, 946-47 (9th Cir. 2008). Nor does it apply to
constitutional challenges to an underlying statutory scheme. Johnson v. Rodrigues (Orozco), 226
F.3d 1103, 1111 (10th Cir. 2000).
D. Abstention
While the Constitution and Congress equip federal courts with authority to void state
laws that transgress federal civil rights, . . . comity toward state sovereignty counsels the power
be sparingly used. Moe v. Dinkins, 635 F.2d 1045, 1046 (2d Cir. 1980). In this case especially,
plaintiffs ask the Court to enter a particularly sensitive issue of state social policy. Smelt v. Cnty.
18
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of Orange, 447 F.3d 673, 681 (9th Cir. 2006). Recognizing the delicate balance of sovereignty
implicated by plaintiffs request, the doctrine of abstention authorizes a federal court to decline
to exercise jurisdiction if federal court adjudication would cause undue interference with state
proceedings. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (NOPSI), 491
U.S. 350, 359 (1989).
But likewise, federal courts are obliged to decide cases within the scope of federal
jurisdiction. Sprint Commcns, Inc. v. Jacobs, __ U.S. __, 134 S. Ct. 584, 588 (2013). Even in
cases where permissible, abstention under any doctrine is the exception, not the rule.
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).
Abstention is an extraordinary and narrow exception to the duty of a District Court to adjudicate
a controversy properly before it. Id. (citations omitted). The following four subsections
address the propriety of abstention under three doctrines raised on the Courts own motion (the
first three), and one raised by defendants.
1. Pullman Abstention
Under the abstention doctrine of R.R. Commn of Tex. v. Pullman Co., 312 U.S. 496
(1941), federal courts should abstain from decision when difficult and unsettled questions of
state law must be resolved before a substantial federal constitutional question can be decided.
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984). Pullman abstention is limited to
uncertain questions of state law. Id. (citing Colorado River, 424 U.S. at 813). If the meaning or
method of enforcing a law is unsettled, federal courts should abstain so that a state court has an
opportunity to interpret the law. Id. If the state court might construe the law in a way that
obviates the need to decide a federal question, abstention prevents both unnecessary
adjudication . . . and needless friction with state policies. Id. (quoting Pullman, 312 U.S. at
19
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500). Conversely, Where there is no ambiguity in the state statute, the federal court should not
abstain but should proceed to decide the federal constitutional claim. We would negate the
history of the enlargement of the jurisdiction of the federal district courts, if we held the federal
court should stay its hand and not decide the question before the state courts decided it. Wis. v.
Constantineau, 400 U.S. 433, 439 (1971) (citations omitted); see also Zwickler v. Koota, 389
U.S. 241, 251 (1967) (a federal court should not abstain under Pullman simply to give a state
court the first opportunity to decide a federal constitutional claim).
The Court does not detect, nor have defendants pointed to any ambiguity or uncertainty
in the Kansas laws plaintiffs challenge. The challenged laws unequivocally prohibit plaintiffs
and other same-sex couples from procuring a marriage license and marrying a person of the same
sex in Kansas. Kan. Const. art. 15, 16; K.S.A. 23-2501 and 23-2508. State officials have
applied these laws to plaintiffs consistent with their plain meaning. See Docs. 4-1 at 5, 4-3 at
5, 4-4 at 5. Thus, the challenged laws are not subject to an interpretation that might avoid or
modify the federal constitutional questions raised by plaintiffs. As a result, the critical concern
underlying Pullman abstentionavoidance of unnecessary state-federal friction where deference
to a state court decision may negate the federal question involvedis missing.
2. Younger Abstention
On the same day plaintiffs filed this action, Kansas Attorney General Eric Schmidt filed
a mandamus action with the Kansas Supreme Court. Moriarty, Case No. 112,590 (Kan. Oct. 10,
2014) (Doc. 14-1). This mandamus action stemmed from an Administrative Order order entered
by a Kansas state court trial judge in Johnson County, Kansas, who, in the wake of the Supreme
Courts decision not to grant certiorari in Kitchen or Bishop, directed the clerk of his court to
begin issuing Kansas marriage licenses to same-sex couples. General Schmidt asked the Kansas
20
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Supreme Court to vacate the Johnson County, Kansas Administrative Order, or at least to stay its
effect. Though the Kansas Supreme Court recognized that the Tenth Circuits decisions in
Kitchen and Bishop may present a valid defense to the Attorney Generals mandamus action, it
granted a temporary stay of the trial judges order directing the Johnson County clerk to issue
marriage licenses to same-sex couples. Doc. 14-1 at 2. The Kansas Supreme Court set a briefing
deadline for October 28, 2014, and will hold oral arguments on November 6, 2014. Id. at 3.
The Kansas Supreme Courts stay order also specifies the issues pending before it: (1)
whether the Johnson County District Court possessed authority to issue marriage licenses to
same-sex couples; (2) whether the Tenth Circuits interpretation and application of the United
States Constitution in Kitchen and Bishop are supreme and therefore modify Kansas ban against
same-sex marriage; and (3) even if the Tenth Circuit rulings are supreme, whether Kansas samesex marriage laws are otherwise permissible under the United States Constitution. Id. Because
the issues specified in Moriarty might resolve the constitutional questions presented here, and
because an injunction could interfere with those state proceedings, the Court considers whether it
should abstain from adjudicating this action under the principles of Younger v. Harris, 401 U.S.
37 (1971).
The Younger doctrine reflects longstanding public policy against federal court
interference with state court proceedings. Id. at 43. The doctrine holds that, for reasons of state
sovereignty and comity in state-federal relations, federal courts should not enjoin state judicial
proceedings. Younger abstention is required when: (1) there is an ongoing state judicial
proceeding involving the federal plaintiff; (2) that implicates important state interests; and (3) the
proceeding provides an adequate opportunity for the federal plaintiff to assert his or her federal
claims. Middlesex Cnty. Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 432 (1982).
21
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Originally, Younger abstention applied only to concurrent state court criminal proceedings.
Younger, 401 U.S. at 53. But the doctrines scope has expanded gradually, and in its current
form it also prevents federal courts from interfering with state civil and administrative
proceedings. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (federal courts may not enjoin
pending state court civil proceedings between private parties); Ohio Civil Rights Commn v.
Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986) (federal courts may not enjoin pending
state administrative proceedings involving important state interests). Moreover, the Supreme
Court also has expanded Youngers restrictions against federal court injunctions to include
requests for declaratory relief because ordinarily a declaratory judgment will result in precisely
the same interference with and disruption of state proceedings that [Younger abstention] was
designed to prevent. Samuels v. Mackell, 401 U.S. 66, 72 (1971).
But even though Moriarty might resolve the issues presented here, the Court concludes
that Younger abstention is not appropriate. Two independent reasons lead the Court to this
conclusion. First, and most, plaintiffs are not a party in Moriarty and therefore cannot assert
their constitutional claims in that proceeding. As a result, a critical element of the Younger
formulation is absent. [A]bstention is mandated under Younger only when the federal plaintiff
is actually a party to the state proceeding; the [Younger] doctrine does not bar non-parties from
raising constitutional claims in federal court, even if the same claims are being addressed in a
concurrent state proceeding involving similarly situated parties. Doran v. Salem Inn, Inc., 422
U.S. 922, 928-29 (1975) (cited in Blackwelder v. Safnauer, 689 F. Supp. 106, 119 (N.D.N.Y.
1988)).
Second, even if plaintiffs had asserted their claims in Moriarty, the Supreme Court has
narrowed Youngers application in civil proceedings to three exceptional circumstances.
22
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Sprint Commns, Inc. v. Jacobs, __ U.S. __, 134 S. Ct. 584, 586 (2013). None of the three is
present here. Younger precludes federal interference with ongoing state criminal prosecutions,
certain ongoing civil enforcement proceedings akin to criminal prosecutions, and pending civil
proceedings involving certain orders that uniquely further the state courts ability to perform
their judicial functions. In Jacobs, the Supreme Court explicitly confirmed Younger does not
apply outside these three exceptional categories, and that the three categories define the
entirety of Youngers scope. Id. at 586-87 (citing NOPSI, 491 U.S. 350, 368 (1989)).
Tacitly recognizing that Younger is limited to three exceptional circumstances,
defendants strive to fit this case (and derivatively, Moriarity) within the third exception
pending state court civil proceedings involving certain orders that uniquely further the Kansas
state courts ability to perform their judicial functions. They argue that a federal court injunction
would interfere with the state courts efforts to ensure uniform treatment of same-sex marriage
licenses across all of Kansas 105 counties. This argument is not without any appeal, for the
Court recognizes that a decision from a Kansas state court would not raise the comity concerns
inherent in a federal court injunction. But after reviewing the cases where NOPSI approved of
abstention under this branch of the Younger analysis, the Court concludes that abstention is not
appropriate.
In Juidice v. Vail, 430 U.S. 327, 335 (1977), the Supreme Court held that a federal court
should abstain from interfering with a states contempt process because it is integral to the
regular operation of [the states] judicial system. Likewise, in Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 13-14, (1987), the Court extended Juidice to a challenge to Texas law requiring an
appellant to post a bond pending appeal. As the Court explained, both involve[d] challenges to
the processes by which the State compels compliance with the judgments of its courts. Id. at
23
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Page: 291
13-14. Both Juidice and Pennzoil involved processes the state courts used to decide cases and
enforce judgments, i.e., functions that are uniquely judicial functions. In contrast, as the Court
already has determined, when Kansas clerks issue marriage licenses they perform a ministerial
function. See supra at pp. 14-15. Accordingly, the stay order in Moriarty does not qualify as
one uniquely furthering Kansas courts ability to perform their judicial functions in the sense that
the post-Younger cases use that phrase.
Because neither plaintiffs nor defendants are parties in Moriarty and because the case
does not fall within one of the three exceptional categories of civil cases that trigger Younger
abstention, the Court declines to abstain on this basis.
3. Colorado River Abstention
The United States Supreme Court has recognized that, in certain circumstances, it may be
appropriate for a federal court to refrain from exercising its jurisdiction to avoid duplicative
litigation when there is a concurrent foreign or state court action. Colorado River Water
Conservation Dist. v. United States., 424 U.S. 800 (1976). Although it is generally classified as
an abstention doctrine, Colorado River is not truly an abstention doctrine because it springs
from the desire for judicial economy, rather than from constitutional concerns about federal-state
comity. Rienhardt v. Kelly, 164 F.3d 1296, 1303 (10th Cir. 1999); see also Colorado River,
424 U.S. at 817 (there are principles unrelated to considerations of proper constitutional
adjudication and regard for federal-state relations which govern in situations involving the
contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and
federal courts). However, the circumstances permitting the dismissal of a federal suit due to
the presence of a concurrent state proceeding for reasons of wise judicial administration are
24
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considerably more limited than the circumstances appropriate for abstention. Colorado River,
424 U.S. at 818.
Colorado River identified four factors that federal courts should consider when deciding
whether to abstain under its aegis: the problems that occur when a state and federal court assume
jurisdiction over the same res; the inconvenience of the federal forum; the desirability of
avoiding piecemeal litigation; and the order that the concurrent forums obtained jurisdiction. Id.
No one factor is necessarily determinative, but [o]nly the clearest of justifications will
warrant dismissals. Id. at 818-19.
The Court finds no clear justification for dismissing this case. This Court and the Kansas
Supreme Court have not assumed concurrent jurisdiction over the same res, so there is no
exceptional need for unified proceedings. Moreover, concerns about interfering with state
proceedings are resolved under a Younger analysis, whichas the Court has explaineddoes
not apply here. See supra at pp. 20-24. Finally, this case and Moriarty are not parallel
proceedings for purposes of Colorado River because the cases involve different parties and
different claims. Moriarty is a dispute between two government officialsthe Kansas Attorney
General and the Chief Judge of the Johnson County, Kansas District Court. Plaintiffs are not
involved in Moriarty, and although Moriarty may have state-wide consequences, it does not
directly address issuance of marriage licenses in Douglas or Sedgwick Counties, where plaintiffs
live and seek to vindicate their constitutional rights. See Wolf v. Walker, 9 F. Supp. 3d 889, 895
(W.D. Wis. 2014) (Plaintiffs have the right under 42 U.S.C. 1983 to bring a lawsuit to
vindicate their own constitutional rights.); see also Moses H. Cone Meml Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 26 (1983) ([T]he presence of federal-law issues must always be a
major consideration weighing against surrender of jurisdiction under Colorado River.). In
25
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sum, this case does not present exceptional circumstances warranting departure from the Courts
general obligation to decide cases pending properly before it.
4. Burford Abstention
Defendants also urge the Court to abstain under Burford v. Sun Oil Co., 319 U.S. 315
(1943). In Burford, the federal court confronted a complex question of Texas oil and gas law
governed by a complex state administrative scheme. Id. at 318-20. Holding that the federal
district court should have dismissed the case, the Supreme Court emphasized the existence of
complex state administrative procedures and the need for centralized decision-making when
allocating drilling rights. Id. at 334. Defendants argue that this case resembles Burford because
granting plaintiffs relief would interfere with Kansas system for uniform administration of
marriage licenses and records.
The Court is sympathetic to the burden an injunction places on state officials but does not
find Kansas system for administering the marriage laws to be so complex that state officials will
struggle to sort out an injunction banning enforcement of the states same-sex marriage ban. Nor
does this case present the type of issue best left to localized administrative procedures. Rather,
this case presents federal constitutional questions, ones squarely within the province and
competence of a federal court. See Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1112 (10th
Cir. 2000). Accordingly, the Court declines to abstain under Burford.
E. The Rooker-Feldman Doctrine
In supplemental briefing filed with the Court the morning of the preliminary injunction
hearing, defendants asserted that the Rooker-Feldman doctrine bars plaintiffs federal court
claims. See Doc. 24. The Rooker-Feldman doctrine provides that federal courts, except for the
Supreme Court, cannot directly review state court decisions. In Exxon Mobil Corp. v. Saudi
26
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Basic Indus. Corp., 544 U.S. 280 (2005), the Supreme Court confined the doctrines application
to the factual setting presented in the two cases that gave the doctrine its name: when the losing
parties in a state court case bring a federal suit alleging that the state court ruling was
unconstitutional. Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462 (1983). Plaintiffs ask this Court to conduct, defendants assert, what
amounts to a review of the Kansas Supreme Courts stay order in Moriarty.
Defendants Rooker-Feldman argument is not persuasive. First, plaintiffs were not
losing parties in the Moriarty action. In Moriarty, the Kansas Attorney General prevailed
at least for the length of the courts stayover Chief Judge Moriarty of the Johnson County,
Kansas District Court by obtaining a temporary stay of Judge Moriartys Administrative Order.
Plaintiffs are not parties to Moriarty and [t]he Rooker-Feldman doctrine does not bar actions by
nonparties to the earlier state court judgment. Lance v. Dennis, 546 U.S. 459, 466 (2006).
Nor do plaintiffs in this case seek review of the Moriarty stay orderan order that
applies only to applicants in Johnson County. Plaintiffs seek marriage licenses in Sedgwick and
Douglas Counties. Instead, plaintiffs here challenge the constitutional validity of a legislative act
and a state constitutional amendment. Such challenges are permissible under Rooker-Feldman
because the doctrine does not bar a federal court from deciding the validity of a rule
promulgated in a non-judicial proceeding. Feldman, 460 U.S. at 486. Although this Courts
ruling may affect some aspects of Moriarty, concurrent state and federal court litigation over
similar issues does not trigger dismissal under Rooker-Feldman. See Exxon Mobil, 544 U.S. at
292 (neither Rooker nor Feldman supports the notion that properly invoked concurrent
jurisdiction vanishes if a state court reaches judgment on the same or a related question).
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During the injunction hearing, defendants invoked Atl. Coast Line R.R. Co. v. Bhd. of
Locomotive Engrs, 398 U.S. 281 (1970). Defendants reliance on this case is also unpersuasive.
In that case, a union asked a federal court to enjoin enforcement of a state court injunction
against picketing because the state courts injunction violated federal law. Id. at 284. The
Supreme Court concluded that the unions suit amounted to a request for the federal district court
to review the state courts injunction, which Rooker-Feldman prohibits. Id. at 296. In contrast to
the current case, the plaintiff in Atl. Coast Line was a party to the state court proceeding and
sought review of a judgmentnot a legislative act. Consequently, nothing in Atl. Coast Line
suggests this Court should depart from the well-established rule that the Rooker-Feldman
doctrine does not bar a federal court challenge to the constitutionality of a state statute by
someone who is not a party to the similar state court proceeding.
II.
Merits of Plaintiffs Motion
A. Standard for a Preliminary Injunction

Having determined that it can, and should, adjudicate plaintiffs motion on its merits, the
Court now turns to plaintiffs request for a preliminary injunction. Under Fed. R. Civ. P. 65(a),
plaintiffs seek a preliminary injunction that: (1) enjoins the defendants from enforcing Article
15, 16 of the Kansas Constitution, K.S.A. 23-2501 and 23-2508, and any other law that
excludes same-sex couples from marriage, and (2) directs defendants to issue marriage licenses
to otherwise-qualified same-sex couples.
A preliminary injunction is an order prohibiting a defendant from taking certain specified
actions. In some cases, such an order can mandate the defendant to take (or continue taking)
certain actions. The injunction is preliminary in the sense that it is entered before the case is
ready for a final decision on the merits. The issuance of a preliminary injunction is committed to
28
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the sound discretion of the trial court . . . Tri-State Generation & Transmission Assn, Inc. v.
Shoshone River Power, Inc., 805 F.2d 351, 354 (10th Cir. 1986). A preliminary injunction is
considered an extraordinary and drastic remedy, one that a court should not grant unless the
movant, by a clear showing, carries the burden of persuasion. West v. Derby Unified Sch. Dist.
No. 260, 23 F. Supp. 2d 1220, 1221-22 (D. Kan. 1998) (internal quotation omitted).
To obtain a preliminary injunction, a plaintiff must establish four elements: (1) the
plaintiff is substantially likely to succeed on the merits; (2) the plaintiff will suffer irreparable
injury if the injunction is denied; (3) the plaintiffs threatened injury outweighs the injury the
defendant will suffer if the injunction issues; and (4) the injunction would not be adverse to the
public interest. Tri-State Generation, 805 F.2d at 355 (citing Lundgrin v. Claytor, 619 F.2d 61,
63 (10th Cir. 1980)). The Court considers each of these elements, in order, below.
1. Likelihood of Success on the Merits
a. Tenth Circuit Precedent
The Tenth Circuit has adopted [a] liberal definition of the probability of success
requirement. Otero Sav. & Loan Assn v. Fed. Reserve Bank of Kansas City, Mo., 665 F.2d
275, 278 (10th Cir. 1981). As long as the other three factors favor a preliminary injunction, it
will ordinarily be enough that the plaintiff has raised questions going to the merits so serious,
substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more
deliberate investigation. Id. (citing Contl Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 782 (10th
Cir. 1964) (further citations omitted)). But this general standard is elevated when a plaintiff
requests one of the three types of disfavored preliminary reliefthose altering the status quo,
29
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mandatory preliminary injunctions, 9 and those granting the moving party all the relief it could
achieve at trial. Flood v. ClearOne Commcns, Inc., 618 F.3d 1110, 1117 n.1 (10th Cir. 2010).
When a plaintiff seeks one of the disfavored forms of injunction, he or she must make an
elevated showing that establishes the likelihood of success on the merits and the balance of
harms favors issuing an injunction. Id. (citing Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224
(10th Cir. 2009)). Here, plaintiffs motion requests a preliminary injunction that qualifies under
each category of disfavored injunction: it would alter the status quo; it would require that
defendants undertake some affirmative conduct; and it would grant plaintiffs almost the entire
scope of relief they would request at a trial on the merits. See Docs. 1 at 1, 3 at VI.A.
Accordingly, the Court will require plaintiffs to show a strong likelihood of success on the
merits.
Two Tenth Circuit opinions, Kitchen and Bishop, control this part of the preliminary
injunction analysis. In Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), same-sex couples
challenged Utahs state statute and state constitutional amendment prohibiting same-sex
marriage. They argued that the laws violated their due process and equal protection rights under
the Fourteenth Amendment. Utahs state-constitutional provision prohibiting same-sex marriage
provided:
(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a
marriage or given the same or substantially equivalent legal effect.
Utah Const. art. I, 29. Utahs statutory same-sex marriage ban provided that:
An injunction is mandatory if it requires the nonmoving party to perform some affirmative

act to comply with it. See RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009).
30
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(1)(a) It is the policy of this state to recognize as marriage only the legal union of
a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman
recognized pursuant to this chapter, this state will not recognize, enforce, or give
legal effect to any law creating any legal status, rights, benefits, or duties that are
substantially equivalent to those provided under Utah law to a man and a woman
because they are married.
U.C.A. 30-1-4.1.
After finding that the plaintiffs had sued the proper parties for standing purposes, the
Tenth Circuit held that the fundamental right to marry includes the right to marry a person of the
same sex. Kitchen, 755 F.3d at 1201-02, 1218. The Tenth Circuit then examined the challenged
laws under the strict scrutiny standard that applies to fundamental rights. Id. at 1218. This
standard requires that any law infringing on a fundamental right be narrowly tailored to
promote a compelling government interest. Id. After discussing the government interests
Utah said the same-sex marriage ban served, the Tenth Circuit concluded that the laws failed the
strict scrutiny standard. Id. at 1218-28 (rejecting the following rationales under strict scrutiny:
promoting biological reproduction within marriages, promoting optimal childrearing, promoting
gendered parenting styles, and accommodating religious freedom and reducing the potential for
civic strife). The Tenth Circuit concluded: [U]nder the Due Process and Equal Protection
Clauses of the United States Constitution, those who wish to marry a person of the same sex are
entitled to exercise the same fundamental right as is recognized for persons who wish to marry a
person of the opposite sex. Id. at 1229-30.
In Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), same-sex couples brought a similar
equal protection and due process challenge to Oklahomas constitutional amendment prohibiting
same-sex marriage. Oklahomas constitutional same-sex marriage ban provided:
A. Marriage in this state shall consist only of the union of one man and one
woman. Neither this Constitution nor any other provision of law shall be
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construed to require that marital status or the legal incidents thereof be

conferred upon unmarried couples or groups.
B. A marriage between persons of the same gender performed in another
state shall not be recognized as valid and binding in this state as of the
date of the marriage.
C. Any person knowingly issuing a marriage license in violation of this
section shall be guilty of a misdemeanor.
Okla. Const. art. 2, 35. After determining that plaintiffs had standing to sue, the Tenth Circuit
held that Kitchen controlled the merits of the appeal. Bishop, 760 F.3d at 1076-79. The Tenth
Circuit considered arguments not addressed in Kitchen, but ultimately concluded that they did
not persuade [the court] to veer from our core holding that states may not, consistent with the
United States Constitution, prohibit same-sex marriages. Id. at 1080-82 (reaffirming Kitchen
but also rejecting under strict-scrutiny analysis childrens interest in having their biological
parents raise them as a compelling government interest justifying a same-sex marriage ban).
Even under the more exacting standard for disfavored injunctions, plaintiffs have shown
a strong likelihood they will succeed on the merits of their claims. Kitchen and Bishop establish
a fundamental right to same-sex marriage, and state laws prohibiting same-sex marriage infringe
upon that right impermissibly. Kitchen, 755 F.3d at 1229-30; Bishop, 760 F.3d at 1082. Kansas
same-sex marriage ban does not differ in any meaningful respect from the Utah and Oklahoma
laws the Tenth Circuit found unconstitutional.
At the preliminary injunction hearing, defendants counsel tried to differentiate Kansas
and its same-sex marriage banfrom the Utah and Oklahoma provisions nullified in Kitchen and
Bishop. He argued that Kansas, by statute, recognizes common law marriage and plaintiffs could
achieve married status under the common law variant of marriage. This argument, even if
accurate, proves too much. On its best day, this argument contends that Kansas common law
marriage alternative provides same-sex couples access to a separate but equal classification of
32
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marriage. That is, opposite-sex citizens can marry by either statutory or common law marriage
while same-sex couples must confine their marriages to the common law alternative. Thus,
defendants alternative way of looking at the same-sex ban still denies plaintiffs equal protection
of Kansas marriage laws.
Because Tenth Circuit precedent is binding on this Court, Kitchen and Bishop dictate the
result here. See United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990) (A district
court must follow the precedent of this circuit . . .); Phillips v. Moore, 164 F. Supp. 2d 1245,
1258 (D. Kan. 2001) (The [district] court, of course, is bound by circuit precedent). The Court
concludes, therefore, that plaintiffs have shown a strong likelihood that they will succeed in
establishing that Article 15, 16 of the Kansas Constitution and K.S.A. 23-2501 violate their
rights guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution.
b. Role of Kansas State Court Precedent
Defendants contend that the Kansas Court of Appeals decision In re Estate of Gardiner,
22 P.3d 1086 (Kan. Ct. App. 2001), affd in part, revd in part, 42 P.3d 120 (Kan. 2002) controls
the constitutional questions raised by plaintiffs motion. In Gardiner, the Kansas Court of
Appeals rejected plaintiffs claim that Kansas prohibition against recognizing same-sex
marriages violated the Fourteenth Amendment of the United State Constitution. Id. at 125-26.
Defendants assert that this Court now must follow Gardiner for two reasons: (1) 28 U.S.C.
1738 obligates federal courts to honor the decisions of state courts; and (2) the United States
Supreme Courts denial of certiorari in Gardiner elevated the precedential effect of that decision
to one that is binding on all federal courts. The Court disagrees with both propositions.
33
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Title 28 U.S.C. 1738 is the full faith and credit statute that applies in federal court. This
statute requires federal courts to give the same preclusive effect to a state court judgment that
another court of the same state would give to it. In other words, under 28 U.S.C. 1738, a
federal court must look to law of the judgment-rendering state to determine the preclusive effect
of a state court judgment. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 375
(1985). But defendants argument confuses judgment and precedent. A judgment represents a
courts final determination of the parties rights after their case has been litigated to its
conclusion. In contrast, precedent consists of the body of decisional rules established in
previous cases that courts must apply later when deciding like cases. Section 1738 obligates
federal courts to honor state court judgments, not follow their precedent. Moreover, for 1738
purposes, a state court judgment precludes subsequent federal litigation only if it involved the
same parties, the same claim, and resulted in a final decision on the merits. Rivet v. Regions
Bank of La., 522 U.S. 470, 476 (1998). Neither plaintiffs nor defendants were parties in
Gardiner. Thus, 28 U.S.C. 1738 does not obligate this Court to honor the judgment rendered
in Gardiner or follow its precedent.
Nor does the Supreme Courts decision declining to issue a writ of certiorari confer
precedential effect on Gardiner in a way that binds the federal courts. It is well-settled that a
denial of certiorari creates no precedential value. Teague v. Lane, 489 U.S. 288, 296 (1989) (As
we have often stated, the denial of a writ of certiorari imports no expression of opinion upon the
merits of the case.) (quoting United States v. Carver, 260 U.S. 482, 490 (1923)); United States
v. Mitchell, 783 F.2d 971, 977 (10th Cir. 1986) ([n]o precedential conclusion can be drawn from
the denial of certiorari). This is especially true here, because the Gardiner plaintiff abandoned
his constitutional attack on Kansas same-sex marriage laws before he took his appeal to the
34
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Kansas Supreme Court. See 42 P.3d 120. Thus, the only consideration of Kansas same-sex
marriage laws came in the Kansas Court of Appeals opinionone the United States Supreme
Court was never asked to review.
In sum, defendants have failed to persuade the Court to depart from two well-settled
decisional principles: first, that federal courts are not bound by state court interpretations of
federal constitutional issues, see Tighe v. B.C. Christopher Sec. Co., No. 91-4219-SAC, 1994
WL 191876, at *5 n.7 (D. Kan. Apr. 22, 1994) (citing Mullaney v. Wilbur, 421 U.S. 684, 690-91
(1975)); and second, that a federal district court must follow the precedent of its Circuit.
Spedalieri, 910 F.2d at 709.
2. Irreparable Injury
Plaintiffs have shown they likely will suffer irreparable injury if the Court does not issue
a preliminary injunction. When an alleged constitutional right is involved, most courts hold that
no further showing of irreparable injury is necessary. Kikumura v. Hurley, 242 F.3d 950, 963
(10th Cir. 2001) (quotation omitted); see also Elrod v. Burns, 427 U.S. 347, 373 (1976); Awad v.
Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); Quinly v. City of Prairie Village, 446 F. Supp. 2d
1233, 1237-38 (D. Kan. 2006). Moreover, the Court would be unable to grant an effective
monetary remedy after a full trial because such damages would be inadequate or difficult to
ascertain, further favoring a finding of irreparable injury. Awad, 670 F.3d at 1131. Thus, the
Court concludes that plaintiffs have satisfied the irreparable injury requirement by showing a
likely violation of their constitutional rights.
3. Balance of Harm
Next, plaintiffs have shown that their threatened injury outweighs any injury defendants
would experience from the injunction. [W]hen a law is likely unconstitutional, the interests of
35
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those [whom] the government represents, such as voters[,] do not outweigh a plaintiffs interest
in having [her] constitutional rights protected. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1145 (10th Cir. 2013) (en banc) (plurality) (quoting Awad, 670 F.3d at 1131) (internal
alterations omitted), affd, __ U.S. __ ,134 S. Ct. 2751 (2014). On these facts, Tenth Circuit
precedent requires the Court to conclude that the balance of harm analysis favors injunctive
relief.
4. Public Interest
Last, the Court must determine whether granting an injunction would be adverse to the
public interest. Here, competing considerations collide head-on. On one hand, it is always in
the public interest to prevent the violation of a partys constitutional rights. Hobby Lobby, 723
F.3d at 1145 (quoting Awad, 670 F.3d at 1131-32). On the other hand, the public interest values
enforcement of democratically enacted laws. This latter value must yield though, when binding
precedent shows that the laws are unconstitutional. In this setting, the publics interest in
enforcement must give way to the more profound and long-term interest in upholding an
individuals constitutional rights. Awad, 670 F.3d at 1132 (quotation omitted). Consistent with
this precedent, the Court concludes that the public interest favors protecting plaintiffs
constitutional rights by enjoining Kansas plainly unconstitutional provisions.
III.
Effective Date of Preliminary Injunction

Finally, defendants have asked the Court to stay any injunction it might enter
temporarily, while they appeal to the Tenth Circuit. Under Fed. R. Civ. P. 62(c), a court may
suspend or modify an injunction during the pendency of an appeal to secure the opposing partys
rights. See also Rhines v. Weber, 544 U.S. 269, 276 (2005) (holding district courts ordinarily
have authority to issue stays . . . where such a stay would be a proper exercise of discretion).
36
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The purpose of a stay is to preserve the status quo while the opposing party pursues its appeal.
McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996).
In the same-sex marriage decisions that followed Kitchen and Bishop, several federal
district courts have stayed the effect of their decisions to permit defendant to exhaust its appeal
rights. See, e.g., Guzzo v. Mead, No. 14-CV-200-SWS, 2014 WL 5317797, at *7 (D. Wyo. Oct.
17, 2014) (granting request for stay pending appeal); Evans v. Utah, No. 2:14CV55DAK, 2014
WL 2048343, at *18 (D. Utah May 19, 2014) (granting request for stay pending appeal despite
factors weighing against it). Judge Skavdahl explained why in Guzzo:
The Court is sympathetic to the mounting irreparable harms faced by Plaintiffs.
However, the many changes that result from this ruling are very serious and
deserve as much finality as the Court can guarantee. Given the fundamental
issues apparent in this case, it is in the litigants and the publics interest to ensure
the correct decision is rendered. It would only cause a great deal of harm and
heartache if this Court allowed same-sex marriage to proceed immediately, only
to have a reviewing court later nullify this decision (and with it, the same-sex
marriages occurring in the interim).
2014 WL 5317797, at *7.
Defendants stay request presents a relatively close call. As Guzzo explained, the Tenth
Circuit has settled the substance of the constitutional challenge plaintiffs motion presents. Id. at
*5. And under the Circuits decisions, Kansas law is encroaching on plaintiffs constitutional
rights. But defendants arguments have required the Court to make several jurisdictional and
justiciability determinations, and human fallibility is what it is; the Circuit may come to a
different conclusion about one of these threshold determinations. On balance, the Court
concludes that a short-term stay is the safer and wiser course.
Consequently, the Court grants the preliminary injunction described below but stays the
effective date of that injunction until 5:00 p.m. (CST) on Tuesday, November 11, 2014 (unless
defendants sooner inform the Court that they will not seek review from the Circuit). This will
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Aplt. App. # 000301
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1
14-CV-02518-DDC
Marie, et al., vs. Moser, M.D., et al.
1
UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS
2
3
KAIL MARIE, ET AL.,
Plaintiffs,
v.
6
7
8
9
10
11
ROBERT MOSER, M.D.,

ET AL.,
..........................
TRANSCRIPT OF
PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
BEFORE THE HONORABLE DANIEL D. CRABTREE
UNITED STATES DISTRICT JUDGE
APPEARANCES:
13
For the Plaintiffs:
14
15
16
18
For the Defendants:
Steve Fabert
M.J. Willoughby
120 SW 10th Avenue
Second Floor
Topeka, KS 66612-1597
Court Reporter:
Kimberly R. Greiner, CSR, RMR, CRR

Official Court Reporter
500 State Avenue
Kansas City, KS 66101
20
21
23
24
25
Stephen Douglas Bonney

American Civil Liberties Union
of Kansas
3601 Main Street
Mark P. Johnson
Dentons US LLP
4520 Main Street
Suite 1100
Kansas City, MO 64111-7700
17
22
Kansas City, Kansas

Date: October 31st, 2014
Defendants.
12
19
Case No. 14-cv-02518-DDC
Proceedings recorded by stenography, transcript produced

by computer.
Aplt. App. # 000302
349 of 446
2
14-CV-02518-DDC
1
2
3
4
5
6
7
8
9
I N D E X
Page
Argument by Mr. Bonney
Argument by Mr. Fabert
13
Argument by Ms. Willoughby
40
Further Argument by Mr. Bonney
49
E X H I B I T S
Defendant's
Description
Exhibits
1
Response to Petition
Offered
5
Received
7
Appendix to Exhibit 1
Amicus Brief
AG Brief for Supreme

Court Case
Respondent's Brief
for Supreme Court
Case
15
Affidavit Moser
16
Affidavit Hamilton
17
Affidavit Lumbreras
18
Conde-Vidal v. Garcia
Padilla
10
Massachusetts v US
Dept. of Health and
Human Services
10
11
12
13
14
19
20
21
22
23
24
25
Aplt. App. # 000303
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3
14-CV-02518-DDC
1
(Court called to order.)
THE COURT:
This is No. 14-2518.
It is Kail
Marie and others against Robert D. Moser and others.
May I begin by having appearances of counsel, please.
5
6
MR. BONNEY:
plaintiffs.
THE COURT:
MR. BONNEY:
MR. JOHNSON:
10
THE COURT:
MR. JOHNSON:
14
MR. FABERT:
Your Honor, Mark Johnson with
Good afternoon to you,
Thank you, Your Honor.

On behalf of Dr. Moser, the
Assistant Attorney General Steve Fabert.
16
17
Mr. Johnson.
13
15
Good afternoon, Mr. Bonney.
the Dentons law firm on behalf of the plaintiffs.
11
12
Stephen Douglas Bonney for
THE COURT:
General Fabert, nice to meet
you.
18
MS. WILLOUGHBY:
I'm M.J. Willoughby,
19
assistant attorney general on behalf of the defendants
20
Douglas Hamilton and Bernie Lumbreras.
21
22
23
THE COURT:
General Willoughby, good
afternoon.
This case is set for the hearing on the
24
plaintiffs' motion for a preliminary injunction.
25
understanding with -- through informal communication
Aplt. App. # 000304
And my
351 of 446
4
14-CV-02518-DDC
1
with counsel, is at least that the defendants wish to
present some documentary evidence that they wanted the
Court to consider as part of its determination of the
motion.
doing.
So let me just get a head count on what we're
Do the plaintiffs have any evidence, even in
documentary form, that they wish to add to the record
they've already created?
MR. BONNEY:
10
THE COURT:
No, Your Honor.

Very well.
Then I -- we will
11
start with the defendants, since it's my understanding
12
that you have some things you wanted to put in the
13
record that weren't currently in the record.
14
understood your request that you would like to present
15
argument on the motion today, is that correct?
16
MR. FABERT:
17
THE COURT:
I also
That is correct, Your Honor.

All right.
Very well.
And I
18
trust that the plaintiffs would like to be heard on it,
19
too.
20
documentary evidence in, make it part of the record and
21
then we'll hear the argument in the normal course that
22
we would with the plaintiffs, as the movant, going first
23
on that.
24
25
So let's do this, let's get the documents --
So General Fabert, General Willoughby, whoever of

you wishes to be -- wants to take the lead on the
Aplt. App. # 000305
352 of 446
5
14-CV-02518-DDC
1
documentary evidence, please proceed.
MR. FABERT:
Your Honor, we've prepared a
binder with ten exhibits in it.
copies of those yesterday morning with plaintiffs'
counsel.
review.
I supplied a hard copy for Your Honor's
THE COURT:
MR. FABERT:
We shared electronic
Thank you very much.

Exhibit 1 -- most of these
relate to the status of the parallel litigation before
10
the Kansas Supreme Court which is not set for hearing
11
until next week on Thursday.
12
reduced that to the minimum.
13
To limit the number, we've
We ask that Exhibit 1, which is the response of
14
Judge Moriarty to the petition for writ of mandamus; and
15
Exhibit 2 which is his appendix, the evidence he offered
16
in opposition to the petition for writ of a mandamus,
17
and then to make sure the Court was aware of the issues
18
that the parties were raising, we ask that Exhibits 3, 4
19
and 5, which are the briefs filed by our office, the
20
briefs filed by Judge Moriarty and an amicus brief that
21
the Kansas Supreme Court allowed be filed.
22
THE COURT:
23
MR. FABERT:
24
25
That's 3, 4 and 5?
That's correct, 3, 4 and 5.
Now, Exhibit 6, 7 and 8 are affidavits signed by

each of the defendants in this case which, generally
Aplt. App. # 000306
353 of 446
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1
speaking, address their personal roles in the
application and marriage license process, and what they
view their duties, both practically and statutorily, to
be.
And then, because we did want to talk to the
Court some about some of the decisional law that's
relevant to the merits, we've added Exhibits 9 and 10.
One is a district court decision from the District of
Puerto Rico, and the other is a First Circuit Court of
10
Appeals decision that is mentioned and discussed in that
11
District of Puerto Rico decision.
12
and 10.
13
THE COURT:
Those are Exhibits 9
Can I just interrupt you just a
14
second to kind of take my understanding along with the
15
offer.
I recognize Exhibit 9, and just --
16
MR. FABERT:
17
THE COURT:
Right.
-- and I don't want to get ahead
18
of the -- on the oral argument front, but in this case
19
the District of Puerto Rico held that the Baker against
20
Nelson decision was controlling.
21
what's going on?
22
MR. FABERT:
23
THE COURT:
24
MR. FABERT:
25
Am I right about that,
Right.
Okay.
The District of Puerto Rico
judge held that he was bound by Exhibit 10, which is the
Aplt. App. # 000307
354 of 446
7
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1
First Circuit opinion, to conclude that there was no
fundamental right to same-sex marriage.
THE COURT:
MR. FABERT:
Okay.
And the reason we comment on
both of those is because Exhibit 10 was commented on
extensively by the United States Supreme Court in its
decision in the U.S. versus Windsor case.
8
9
And, again, these aren't being offered because we

want to reargue the merits of any of these cases, but
10
simply in order to give the Court context as to whether
11
it is circuit law or constitutional law or supreme court
12
law that we're here to discuss today.
13
THE COURT:
All right.
Very well.
I assume
14
there's no objection to the offer of Exhibits 1 through
15
10?
16
MR. BONNEY:
17
THE COURT:
No objection.
All right.
Exhibits 1 through
18
10 will be received and made part of the record on the
19
motion for preliminary injunction.
20
Mr. Fabert, does that conclude the documentary
21
evidence that you all wanted to make part of the record
22
on this motion?
23
24
25
MR. FABERT:
Yes, I believe it does.
That's
all we -- we wanted to see in the record on this motion.

THE COURT:
All right.
Aplt. App. # 000308
Thank you very much.
355 of 446
8
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1
Counsel, I said we would -- we would come back
and go in the normal order that we do on motions where
the movant proceeds and we'll hear then from the
defendants.
defendants' table would like to speak separately, is
that a -- not necessarily?
I take it that the two of you on the
MR. FABERT:
I -- I think the preferred
method of proceeding is for me to present arguments both
for my client and on the common issues for the two court
10
clerks, and Miss Willoughby will -- will add and extend
11
to my remarks, if she feels I have left something out.
12
THE COURT:
All right.
Very well.
We'll
13
hear from both you and then of course we'll come back to
14
you to close the argument, plaintiffs.
15
I didn't and don't feel the need to prescribe
16
timetables for these arguments.
17
lawyers.
18
you that I spent a good deal of time with the papers in
19
the last eight or nine days and I think I've done my
20
homework.
21
I trust your judgment and experience to make the
22
arguments of appropriate length.
23
24
25
You're experienced
I know you'll use good judgment.
I will tell
So you don't need to start from scratch, but
So with that is -- Mr. Bonney, are you going to

speak?
MR. BONNEY:
Yes, Your Honor.
Aplt. App. # 000309
356 of 446
9
14-CV-02518-DDC
1
THE COURT:
MR. BONNEY:
Honor.
Please proceed.
Thank you for hearing us, Your
May it please the Court.
THE COURT:
MR. BONNEY:
I give you my love more precious than money,
I give you myself before preaching or law;
Will you give me yourself?
Will you come travel with me?
10
11
12
13
Counsel.
"Camerado, I give you my hand!
Shall we stick by each other as long as we

live?"
That is the last stanza of Walt Whitman's Song of
the Open Road.
14
I start with that because it's important to keep
15
in mind that this case impacts, in a real and immediate
16
way, the lives of people.
17
involves the fundamental right of people to choose whom
18
they should marry.
19
Specifically this case
In the briefs and court decisions, we can all
20
read the legal arguments and the lists of legal
21
disabilities that gay and lesbian couples suffer as a
22
result of the government's marriage ban, but those
23
documents are dry, and at least to non-lawyers
24
inscrutable.
25
Whitman's words capture perhaps the greater harms
Aplt. App. # 000310
357 of 446
10
14-CV-02518-DDC
1
of the state's marriage ban, those are the intangible
harms.
from giving to each other themselves, their hands, their
lives, their loves above money, preaching and law.
The law forbids these committed, loving couples
This law forbids these people from traveling
together through marriage and from feeling the marital
-- marital bonds of love and commitment that go hand in
hand with marriage.
least as much a part of marriage as are the legal
Those intangible benefits are at
10
benefits, including the ability to visit a spouse in the
11
hospital and to help a spouse make an informed decision
12
about healthcare, the right to inherit under the laws of
13
intestate succession, and many, many other legal rights
14
that straight people take for granted.
15
Every day, every minute, every second that goes
16
by while Kansas law prohibits gay and lesbian couples
17
from exercising their right to marry a spouse that they
18
choose is one more irretrievable moment in time when
19
those people have been denied their fundamental
20
liberties.
21
In legal terms, these are certainly irreparable
22
harms.
23
soul that can best be described by poets not lawyers, so
24
I won't try.
25
In human terms, they're losses of the heart and
As Judge Skavdahl of the United States District
Aplt. App. # 000311
358 of 446
11
14-CV-02518-DDC
1
Court for the District of Wyoming so succinctly stated
two weeks ago today in his order granting preliminary
injunction and temporary stay, "While the Tenth
Circuit's decisions in Kitchen versus Herbert and Bishop
versus Smith may be publicly debated, one thing remains
undebatable, a district court is bound by decisions made
by its circuit court.
decisions in Kitchen and Bishop demand a determination
in plaintiffs' favor."
10
Accordingly, the Tenth Circuit's
The same is true here.
The circuit precedent in
11
Kitchen and Bishop struck down the laws from Utah and
12
Oklahoma that are legally indistinguishable from and
13
are, in fact, nearly identical to the Kansas
14
constitutional provision and statutes that are issued --
15
at issue in this case.
16
a decision in plaintiffs' favor in this proceeding as
17
well.
18
19
20
Those circuit precedents demand
Plaintiffs respectfully ask that the Court enter

the requested injunction.
THE COURT:
Before you leave the lectern, I
21
do want to ask a couple of questions.
22
some -- it is a dry, technical doctrine but it's an
23
important one because it goes to our court's
24
jurisdiction, and I want to be a little clearer than I
25
am at this moment about what the plaintiffs' request in
Aplt. App. # 000312
Standing as not
359 of 446
12
14-CV-02518-DDC
1
the preliminary injunction is.
if an injunction is issued?
MR. BONNEY:
What relief do you seek
An order the defendants can't
enforce the Kansas constitutional provision, the
Marriage Amendment from 2005, and the implementing
statutes which, you know, there are I think three
statutes in the Kansas marriage code that pertain to
this matter; one defining marriage again as a union
between a man and a woman and declaring that all other
10
marriages are void, and the -- in the papers we
11
mentioned what the statutes are.
12
I could step back.
13
THE COURT:
I'm sorry, Your Honor,
No, no, no.
I ask because there
14
are -- there's a little bit of dissidence in the papers
15
over what I come to think of as the recognition aspect
16
of your claim.
17
the plaintiffs' claims into the two bundles; the
18
licensing aspect of things and the recognition issue.
I kind of, for better for worse, I put
19
Does the preliminary injunction seek -- that you
20
seek, and I think your reply may be the closest we come
21
to a sharp point on this, does it seek recognition of
22
any marriages performed outside Kansas?
23
MR. BONNEY:
No.
This is totally a marriage
24
case.
25
it that, you know, gets somewhat -- it's totally a
This is a licensing case and the -- the part of
Aplt. App. # 000313
360 of 446
13
14-CV-02518-DDC
1
licensing case.
respect to Defendant Moser.
in the way that the other recognition litigation has
gone on around the country, which is, you know,
recognize this marriage performed out of state, as you
say, or in Canada, as I say, and allow the people to --
all the benefits of marriage.
8
9
Recognition is only pertinent in -- in

It's not really recognition
This is purely a claim that once the marriage

license is issued and is returned by the officiant, then
10
the -- you know, the district court clerks have some
11
duties to fulfill in their offices, mostly transmit it
12
to Secretary Moser's office and then process it there.
13
So that's the kind of recognition we're talking
14
about here.
15
16
This is a very small "r" recognition.

THE COURT:
you.
All right.
Very well.
Thank
Thank you for your argument.
17
MR. BONNEY:
18
THE COURT:
19
MR. FABERT:
Thank you.
Mr. Fabert.
Before I say anything on the
20
merits of the motion, I want to make it clear that if a
21
preliminary injunction were -- is issued in this case,
22
the decision has already been made to appeal that and
23
also to ask Your Honor for a stay long enough to allow
24
us to perfect that appeal.
25
jump the gun and get that motion on file before we even
And -- and we didn't want to
Aplt. App. # 000314
361 of 446
14
14-CV-02518-DDC
1
had a hearing on this motion, but I did want that to be
in the record at this moment in time so that I don't
forget about it.
THE COURT:
I had a pretty good idea coming
in that I might not be the last judge to hear about this
case.
issue, without jumping over the fact that there are
issues of jurisdiction and justiciability that your
briefs raise, what -- you would be asking for a stay
10
11
Let me -- as long as you've raised it, the stay
until a determination on the merits by the Circuit?

MR. FABERT:
We would be asking this court
12
to stay the temporary injunction until the Circuit
13
decides whether that temporary injunction was properly
14
and lawfully issued, and then it would then be up to the
15
Circuit to decide whether that stay continued beyond the
16
moment when they ruled on that issue.
17
THE COURT:
Wouldn't a stay, along the lines
18
of what Judge Skavdahl did in Wyoming, allow you to
19
present to the Circuit and let them decide whether a
20
stay is the right action?
21
22
MR. FABERT:
As I -- as
I read his order, he gave a -- a short-term stay --
23
THE COURT:
24
MR. FABERT:
25
It probably would.
He did.
-- long enough to permit the
Wyoming Attorney General to decide whether or not they
Aplt. App. # 000315
362 of 446
15
14-CV-02518-DDC
1
wished to appeal.
announced they did not wish to appeal and that dissolved
his stay.
And then within that deadline they
THE COURT:
Yeah, I recall it a little
differently.
action.
been 10 days.
it was long enough to permit your peer in Wyoming to go
to the Circuit and say you ought to stay, this order is
I think he said I would -- I'll stay this
I think it was for seven days.
It may have
Whatever it says the order specifies but
10
wrong; and wouldn't that give you enough relief if an
11
injunction does issue?
12
MR. FABERT:
I think it probably would,
13
because our expectation was that even if we had to file
14
the documents over the weekend, that we'd get them on
15
file and be seeking an emergency stay in Denver.
16
17
THE COURT:
MR. FABERT:
19
THE COURT:
21
22
Exactly.
I now back up and let you say
your peace.
MR. FABERT:
That's fine.
Not to -- not to
make it sound as if I've conceded the motion --
23
THE COURT:
24
MR. FABERT:
25
I jumped the gun on
you.
18
20
All right.
concede the motion.
I understand.
-- because we definitely don't
And part of what we've briefed is
Aplt. App. # 000316
363 of 446
16
14-CV-02518-DDC
1
the question of whether there is a realistic likelihood
that this case, as currently postured, can even go
forward, let alone result in a favorable judgment for
plaintiffs.
We have to recall that there are -- there are two
forms of relief being requested in the complaint filed
in this case.
other is a declaratory judgment permanently determining
whether existing Kansas law violates the Fourteenth
10
One is immediate injunctive relief.
The
Amendment.
11
We think there are very serious doubts as to
12
whether there is any authority for the Court to issue
13
any form of injunctive relief until after the other
14
relief has been granted, because Section 1983, 14 --
15
42 U.S.C. Section 1983 expressly prohibits the granting
16
of preliminary injunctive relief where the defendants
17
are judicial officers of a state court system.
18
19
We also have a problem with competing

jurisdiction --
20
21
THE COURT:
Can I stop you there for a
minute?
22
MR. FABERT:
23
THE COURT:
Sure.
I just want to hear why you
24
think a district court clerk or deputy clerk performing
25
the act or not performing the act of issuing a marriage
Aplt. App. # 000317
364 of 446
17
14-CV-02518-DDC
1
license, why that is a -- the act of a judicial officer
under the functional test that our Circuit seems to have
adopted?
MR. FABERT:
If you were to ask that
question two weeks ago, that might have been a subtle
question because it was a relatively rare occurrence
that an application for a marriage license would be
referred to a judge or to the chief judge of a -- of a
judicial district.
10
But as of the 8th of October, it became standard
11
practice always to have those decisions made by the
12
chief judge, and you'll see that in the appendix that
13
was filed on behalf of Judge Moriarty that that includes
14
an email from the Office of Judicial Administration
15
suggesting a -- a roadmap of how to respond to the
16
United States Supreme Court's denial certiorari.
17
And the suggestion there was that clerks ought
18
not any longer be permitted to make those decisions, if
19
for no other reason, to protect them from being named as
20
defendants in lawsuits such as this one, and that those
21
decisions should be made exclusively by an officer with
22
unambiguous absolute judicial immunity, that being
23
ordinarily the chief judge of the district.
24
25
We've also submitted affidavits from two

defendant clerks in this case who say that that is their
Aplt. App. # 000318
365 of 446
18
14-CV-02518-DDC
1
understanding of their duties as of the date of the
issuance of that email, that they no longer make
decisions and are not entrusted with any power;
ministerial, discretionary or otherwise, to determine
whether an application made by two persons of the same
sex should or should not result in the issuance of a
license.
8
9
THE COURT:
I'm sitting here looking at the
test that -- for this functional approach that Bishop
10
one adopted, and it talks about is this a normal
11
judicial function, does it happen in a courtroom or in
12
the judge's chambers?
13
lawsuit?
14
MR. FABERT:
15
THE COURT:
Does it involve a case, a
Correct.
And even Judge Fairchild's order
16
refers to the marriage application process as a
17
ministerial act.
18
is now that makes -- I mean, it's one thing for the
19
Office of Judicial Administration to give sound legal
20
advice and say judges have immunities, clerks don't, you
21
ought to run this through the judge spigot.
22
23
24
25
I'm hard-pressed to understand what it
It's another to make that function a judicial

officer's act, isn't it?
MR. FABERT:
And if this lawsuit had been
brought and if this motion were pending prior to
Aplt. App. # 000319
366 of 446
19
14-CV-02518-DDC
1
five o'clock on the afternoon of the 10th of this month,
that might be another closed question.
But as of five o'clock -- a little after
five o'clock on Friday the 10th, the Kansas Supreme
Court issued a temporary restraining order which
outright prohibits the issuance of same-sex marriage
licenses in the state of Kansas.
8
9
Now, while it's true that that was issued with

specific force and effect with regard to Judge Moriarty,
10
the language employed in that order, which is attached
11
to our response brief, Dr. Moser's response brief, the
12
language in that order makes it plain that the reason
13
for the order is to maintain a uniform practice
14
throughout the state of Kansas.
15
The clerks throughout the state are interpreting
16
that as an order that is directed to them, to each and
17
every one of them, that they are now prohibited by a
18
temporary restraining order issued by the Kansas Supreme
19
Court from making any decision to issue a license to
20
same-sex couples.
21
THE COURT:
Yeah, I -- with all respect to
22
the clerks and how they read Chief Justice Nuss' order,
23
what he orders is a stay of Chief Judge Moriarty's
24
order.
25
licenses to same-sex couples.
He does not enjoin one from issuing marriage
Aplt. App. # 000320
367 of 446
20
14-CV-02518-DDC
1
MR. FABERT:
He did so in the belief that by
doing so, he would conform the practices in the Tenth
Judicial District to the practices in every other
judicial district in Kansas, and that none of them would
be issuing same-sex licenses until after the hearing
scheduled for next week.
THE COURT:
MR. FABERT:
purpose.
Okay.
That's the practical effect and
I mean, clearly that order is not intended to
10
leave it open to any of the chief judges or any of the
11
court clerks to do differently.
12
maintain a uniform practice throughout the state of
13
Kansas until the Supreme Court can determine whether
14
it's necessary to do otherwise and to do it uniformly
15
statewide, to either keep the door shut or open the door
16
for everyone at the same time and not have that decision
17
made on a local basis.
18
THE COURT:
It's intended to
I don't understand why you think
19
that makes a preliminary injunction that issued applying
20
the Tenth Circuit's rule on an equal protection
21
analysis, why you think that means that a preliminary
22
injunction can't deal with that issue.
23
24
25
MR. FABERT:
I'm not sure I understand the
question.
THE COURT:
Well, you see something in Chief
Aplt. App. # 000321
368 of 446
21
14-CV-02518-DDC
1
Justice Nuss' order that makes a preliminary injunction
inappropriate here.
MR. FABERT:
THE COURT:
That's correct.
And what is it about that order,
why does that, in effect, tell a federal court, if it
concludes that a violation of the Constitution is
happening or has happened, why does that require that
federal court to stand down?
MR. FABERT:
I filed a brief this morning
10
that cited to the Exxon case.
11
discussed in the Exxon opinion, Exxon discussed a modern
12
application of the Rooker-Feldman doctrine.
13
aspect of Rooker-Feldman, limitations on subject matter
14
jurisdiction, is that federal courts are not to
15
entertain requests for relief that are, as the phrase
16
goes, "inextricably intertwined," with a pending matter
17
in the state court.
18
19
One of the cases
And one
I'm something of a compulsive researcher.
I keep
researching even when I'm done writing briefs.
20
THE COURT:
21
MR. FABERT:
You could have worse qualities.

I keep -- I keep looking.
22
get up in the middle of the night and I keep looking.
23
And low and behold, I came across a case that I think
24
may be on all fours.
25
THE COURT:
And that's the Exxon case?
Aplt. App. # 000322
369 of 446
22
14-CV-02518-DDC
1
2
MR. FABERT:
in the Exxon case.
3
4
No, it's one of the cases cited
THE COURT:
I'm trying to find the brief
that you filed this morning.
MR. FABERT:
time getting a hard copy with me --
THE COURT:
MR. FABERT:
I'm not sure.
I had a hard
Got it.
-- to the courthouse today
myself.
10
One of the cases cited by Justice Ginsburg in the
11
Exxon decision was a 1970 decision that involved dueling
12
injunctive orders, one issued by a state court and one
13
issued by a federal court.
14
Line Railroad Company versus Brotherhood of Locomotive
15
Engineers case, 90 Supreme Court 1739, 398 U.S. 281.
16
That's the Atlantic Coast
That was a labor case where, in fact, the federal
17
court had first in time jurisdiction.
18
court had already adjudicated some issues about the
19
dispute between the union and the employer but had not
20
expressly prohibited the exercise of state court
21
jurisdiction over the parties.
22
And the federal
That litigation had reached a point where the
23
employer, I believe it was, was able to resort to the
24
state courts for relief.
25
obtained an injunction prohibiting the union from
They did that and they
Aplt. App. # 000323
370 of 446
23
14-CV-02518-DDC
1
picketing.
The union thought that was not fair and they went
back into the court -- the federal court that had
already exercised jurisdiction and asked it to enter an
injunction prohibiting the parties from employing or
taking advantage of the injunction order that the state
court had issued trying to avoid a direct clash of
jurisdiction by ordering the parties not to do anything
to seek to invoke or enforce the state court injunction.
10
United States Supreme Court took a look at that
11
and said that was impermissible.
12
for the federal court, even though it's first in time,
13
to defer to the state court, that the state court had
14
subject matter jurisdiction and lawfully issued its
15
injunction, and that the only relief available was to
16
petition the United States Supreme Court on petition for
17
certiorari.
18
federal courts to act as appellate courts when an
19
underlying order by a state court has been issued.
That it's mandatory
That there is no jurisdiction in the lower
20
This court today has no jurisdiction to entertain
21
challenges to whatever it is the Kansas Supreme Court is
22
currently doing in the Moriarty case.
23
Supreme Court has to be allowed to go forward and to do
24
what it intends to do, and I don't pretend to speak for
25
them.
The Kansas
I don't know what they actually intend to do.
Aplt. App. # 000324
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1
know they've been giving us signals about what they
reserve the right to do, but I don't know what they
intend to do.
What they do intend though is to keep existing
law in place until they rule.
justice's order says:
the Supreme Court can decide on the marriage.
8
9
That's what the chief
Keep existing law in place until
And they put it on a very fast track.
We were
given one week to submit briefs and nine days after the
10
briefs were submitted to prepare for oral argument.
11
would -- I would not be surprised, just as a guess, if
12
the Kansas Supreme Court has a decision on whatever it
13
plans to do within a day or two after we argue the case.
14
15
16
THE COURT:
On the 10th is when you're
arguing?
MR. FABERT:
On the 6th I believe.
Thursday
17
the 6th will be when 15 minutes per side of oral
18
argument will be presented, and the Court will then
19
determine whether Judge Moriarty did something unlawful,
20
whether he overstepped his bounds.
21
because of what they demanded that be briefed, that they
22
may address the ultimate constitutional question of
23
whether Kansas law can sustain a challenge under the
24
Fourteenth Amendment or any other amendment, because we
25
don't -- we don't have any pending lawsuits.
Aplt. App. # 000325
But it's possible,
372 of 446
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1
The friend of the court brief suggests that there
is a case currently pending in state court where
constitutional issues have been raised.
briefs in that case.
challenge in that case.
thinking on the part of counsel who filed that amicus
brief to think that wouldn't it be wonderful if only he
had pled a constitutional challenge that he did not
plead.
10
I have read the
I see no such constitutional

That's more or less wishful
And although that case is set for oral argument
11
on a motion for judgment on the pleadings on the 15th of
12
November, I do not expect there to be any ruling on any
13
constitutional issues coming out of that hearing.
14
15
THE COURT:
That case is in -- at the
district court level?
16
MR. FABERT:
That's at the district court
17
level, that's correct.
18
briefs there.
19
That's a case against the Department of Revenue and it's
20
about taxation based on marital status.
21
22
23
And I've looked through the
Outside counsel is handling that case.
THE COURT:
Okay.
Where is that pending,
that case?
MR. FABERT:
24
Shawnee County.
25
Leavenworth County.
I don't know.
I think it's in
If it's not in Shawnee County, it's in
Aplt. App. # 000326
373 of 446
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1
But the -- the context of the events in this case
show what -- what the practical purpose of this
litigation is.
the evening about an hour after Chief Justice Nuss
issued his order.
got in touch with Mr. Bonney, was that I -- I asked
Mr. Bonney by way of email exchanges, I said, "Are you
or aren't you intending this newly filed federal case to
put a stop to what's going on in the Kansas Supreme
10
11
This lawsuit was filed at six o'clock in
And one of the first things, when I
Court?"
And I got an answer from him that I thought was
12
somewhat equivocal.
13
more explicit question.
14
to undo the chief justice's order by resort to this
15
federal forum?"
16
And so I expanded and I asked him a

I said, "Are you going to try
MR. BONNEY:
Your Honor, I just want object
18
MR. FABERT:
And I didn't get a response.
19
MR. BONNEY:
-- to this line of argument and
17
to this --
20
what we corresponded with.
21
hole very quickly if we go into this.
22
THE COURT:
We're going to go down a rat
I'm going to let him say it and
23
I'll hear from you on what you'd like to say.
24
doesn't matter much to me.
25
trying -- look, there are obviously good reasons why, in
It
The hard part for me in
Aplt. App. # 000327
374 of 446
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1
an ordinary controversy about state law, that a federal
court ought to give a state court, typically a state
Supreme Court, a wide berth.
But this is not a labor dispute.
There are at
least -- if you believe the plaintiffs' briefs in this
case, there is a holding from the Circuit that addresses
the very substantive issues presented by their complaint
in their motion and that goes to, the Circuit has said,
a fundamental right, a fundamental constitutional right.
10
And so the hard part for me to figure out is why,
11
in light of those -- that -- that circumstance given the
12
ruling in Kitchen and Bishop, when I read the chief
13
justice's order to address the propriety of an
14
administrative order, that does not necessarily require
15
the court to decide that constitutional question.
16
That's where I struggle with your argument.
17
MR. FABERT:
Let me -- let me add to that
18
something we articulated in our initial response, which
19
is Kansas is one of the few states where constitutional
20
challenge was addressed before this became a -- a
21
popular widespread issue.
22
ruling from 2002 challenging our marriage laws under the
23
-- the Fourteenth Amendment.
24
THE COURT:
25
MR. FABERT:
We have a constitutional
Is this the Gardiner case?

The Gardiner case.
Aplt. App. # 000328
And that
375 of 446
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1
case resulted in a finding that our statutory scheme was
constitutional and was not infirm under the Fourteenth
Amendment.
Court.
denied, just as happened in the Kitchen case, denied
without comment.
That was affirmed in the Kansas Supreme
A petition for certiorari was filed and was
THE COURT:
All right.
I think, again, we
read -- we may read things -- the same thing
differently.
But to me the issue in the Gardiner case
10
was when, under Kansas law, you determine a person's
11
gender.
12
by their status at the time they enter the marriage?
13
did not find in Gardiner a challenge to the
14
constitutionality of the Kansas provisions that are at
15
issue in this case.
16
me why I'm wrong.
17
Is it determined by what they're born with or
You seem to think I'm wrong.
MR. FABERT:
Tell
It's explicit in the Court of
18
Appeals opinion.
19
that directly addresses that issue.
20
tangentially referred to in the Supreme Court.
21
There's about a paragraph and a half
THE COURT:
It's only
It doesn't become a basis for
22
the holding at the Supreme Court level, is that much
23
right?
24
25
MR. FABERT:
And the reason for that is
because the plaintiff in that case abandoned the
Aplt. App. # 000329
376 of 446
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1
constitutional challenge once the petition for review
was granted.
at the Court of Appeals that there was no constitutional
infirmity.
They conceded and acquiesced in the ruling
THE COURT:
And doesn't that mean that the
Supreme Court's then decision not to grant cert in that
doesn't have anything to do with the validity of the
same-sex marriage laws?
MR. FABERT:
I don't know because I haven't
10
actually read the petition for certiorari that was filed
11
in that case, so I don't know what issues were raised.
12
We have a statutory rule that requires the
13
judgments of state courts to be given full faith and
14
credit in federal court.
15
in the Exxon case.
16
Line Railroad case.
17
oldest statutes still on the books that it goes all the
18
way back into the 18th Century.
19
not permitted to disregard, ignore or challenge or seek
20
to set aside the precedents that state courts follow.
21
That issue puts the Kansas situation in a very
That statutory rule is cited
It's cited in the Atlantic Coast

It's cited as being one of the
The federal courts are
22
different light than the laws of Oklahoma or Utah where
23
no such prior decision existed.
24
by the Oklahoma appellate courts rejecting
25
constitutional challenges.
There were no rulings
There were no Utah decisions
Aplt. App. # 000330
377 of 446
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1
in their state court system rejecting constitutional
challenge.
either of those cases.
And so that issue could not be raised in
That needs to be litigated in this case.
It
needs to be litigated on the merits.
disagrees, then the Court will have to rule against us
after we've had a full and fair opportunity to brief it
in argument.
lawsuit.
10
If the Court
That will come some time into this
We haven't even filed an answer or a motion to
11
dismiss yet.
12
there are no distinguishing factors and that what
13
amounts to offensive collateral estoppel ought to be
14
employed against the State of Kansas.
15
Kansas did not participate in either the Kitchen versus
16
Herbert case or the -- the Bishop versus Smith case.
17
It's far too early to be concluding that
The State of
And to -- to suggest that -- that the State of
18
Kansas simply can't have a say on this subject just
19
because the Circuit ruled a particular way in -- in the
20
case of Oklahoma and Utah is truly remarkable.
21
Although it's said over and over again in
22
plaintiffs' filings that these Circuit decisions are
23
binding, part of the briefing we did for the Kansas
24
Supreme Court was to show they certainly are not binding
25
on the Kansas Supreme Court.
Intermediate decisions are
Aplt. App. # 000331
378 of 446
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1
merely advisory when state courts address the same
constitutional issue.
Court said that explicitly just last term.
And the United States Supreme
And if, Your Honor, cares to look at the
authorities that we cite on issue No. 2 in our brief on
the merits, you'll find the brief on that subject.
in fact, it's in the Wyoming decision.
statement made by the judge in that case that of course
these decisions, Kitchen versus Herbert and Smith --
And,
There's a
10
Bishop versus Smith, are not binding in Wyoming courts.
11
But he is not a state judge, he is a federal judge, and
12
a different rule applies to a federal judge.
13
judges do follow precedent set.
14
15
THE COURT:
Federal
Well, can I ask you this sort of
20,000-foot question, maybe 50,000 feet?
16
MR. FABERT:
17
THE COURT:
Yes, sir.
Does the State of Kansas -- I'm
18
sorry.
19
position that the same-sex bans in the Kansas
20
Constitution and in the Kansas statute are different in
21
some material respects from the prohibitions that
22
existed in Utah and Oklahoma?
23
Do the defendants you represent take the
MR. FABERT:
Yes, because we recognize
24
common-law marriage, which allows parties interested in
25
entering into a marriage relationship to completely
Aplt. App. # 000332
379 of 446
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1
2
bypass the licensing process.

Kansas is a -- is a double-track marriage system.
We have a formal system where persons who want to be
publicly registered as married couples can apply for a
license and elect, after the license is issued, either
to have a formal ceremony or to dispense with the
ceremony, and to then have that license turned into a
marriage certificate that is filed with my client,
Secretary Moser, whose agency includes the department of
10
11
vital statistics -- the Office of Vital Statistics.

That's a choice that persons interested in
12
entering into marriage in Kansas can make.
13
obligated or required to make that choice.
14
THE COURT:
They are not
Say -- summarize again for me
15
common-law marriage track, because I didn't get that
16
from your brief.
17
MR. FABERT:
Common-law marriage is
18
recognized in the statutes.
19
identified as a form of marriage that will be recognized
20
in Kansas.
21
elements.
22
which really boiled down to sufficient age and mental
23
capacity to form an ordinary contract.
24
those are now limited to persons over the age of 18.
25
It's specifically
Common-law marriage has three traditional

One is the capacity to enter into marriage,
THE COURT:
Statutorily
And what is it if a person in
Aplt. App. # 000333
380 of 446
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1
Kansas claims they are a participant in a common-law
marriage, I don't remember this from your briefs, what
kind of filing can they make and what kind of
certificate can they receive from Secretary Moser?
MR. FABERT:
The -- the -- there is no
procedure available under the statutes for the issuance
of a -- of a piece of paper that confirms that --
THE COURT:
MR. FABERT:
I misunderstood you.
-- that two persons are
10
common-law man and wife.
11
always made after the fact once the issue comes up.
12
That is a determination that's
If, for instance, one of the spouses is injured
13
and a claim is made for disability benefits under the
14
workers' compensation act, then the administrative
15
hearing officer will determine whether a claim of
16
common-law marriage is well-founded based on evidence.
17
Likewise, under the law of intestate succession,
18
it's possible to establish postmortem that a common-law
19
marriage had been entered into prior to the death.
20
THE COURT:
And are you telling me there are
21
no common-law marriages recognized in the two states,
22
Utah --
23
MR. FABERT:
Not -- not that I'm aware of.
24
There is -- there is no discussion of common-law
25
marriage in either Oklahoma or Utah.
Aplt. App. # 000334
Now, that's --
381 of 446
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1
that's not to say that -- that they haven't recognized
them.
expressly refers to those being a parallel track and a
different method for entering into common-law marriages.
It's that their statutory scheme I don't believe
And -- and that methodology may be relevant in
this case.
one of them -- one of our -- our para-plaintiffs gave an
interview and said they had entered into a marriage two
years ago, but that they didn't consider it lawful
According just to what the press reports,
10
because it wasn't formal.
11
of thing, that tells me these people are probably
12
common-law spouses if they thought they were married, if
13
they told their friends that they were married, and if
14
they had the capacity to be married.
15
And the point I see that kind
And so the real question under Kansas law is
16
whether the prohibition on same-sex marriage extends to
17
common-law marriages.
18
operating on the same kind of two-track system that some
19
of the -- some of the states have adopted where they
20
allow civil union as an alternative to the state law
21
marriage for same-sex couples; and that poses a whole
22
different set of issues.
23
Otherwise Kansas would be
That is -- that is only a equal protection issue.
24
It's not a fundamental right of marriage issue, because
25
the state isn't prohibiting the marriage from occurring.
Aplt. App. # 000335
382 of 446
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1
The state isn't even regulating the occurrence of the
marriage.
common-law marriage after the fact.
The state is merely recognizing the
Now, I -- I think this is part of what the Kansas
Supreme Court wanted us to brief as to whether our --
our constitutional amendment does or does not bar
same-sex common-law marriages.
8
9
I think a plain reading of the language would

lead to the natural conclusion that it does, but I --
10
I'm not entrusted with interpreting our state's
11
constitution.
12
is though.
13
The Supreme Court of the State of Kansas
And if they should decide next week that
14
common-law marriage is available to same-sex couples,
15
then the whole posture of this case is -- is very
16
different than what it's described to be in the -- on
17
the face of the complaint that was filed in this case.
18
THE COURT:
I have interrupted you
19
throughout your time at the lectern.
20
few minutes of solitude.
21
finish your argument --
22
MR. FABERT:
23
THE COURT:
Let me give you a
I will ask you to please
Okay.
-- then we'll hear from
24
Miss Willoughby, and I'll promise to be quiet for a
25
while.
Aplt. App. # 000336
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1
MR. FABERT:
Again, our -- our confusion
from the beginning of this case was whether the
temporary restraining order or preliminary injunction
was really only intended to apply to the named
defendants and no one else, because that -- that just
didn't seem to make much sense to us, that in order for
the relief to be effective under Kansas law, you have to
not only get the certificate, you have to also get the
cooperation of the executive agencies and the judicial
10
bureaus and everyone else who might be called upon to
11
determine whether the marriage is or is not void.
12
As happened in the Gardiner case, the Gardiner
13
case is a case where a formal certificated marriage
14
actually occurred between a man and a surgical
15
transgender male to female spouse.
16
ceremony was performed by Justice Robert Davis of the
17
Kansas Supreme Court.
18
In fact, the
There can be no clearer example of what would
19
appear to be a facially routinely correct certificated
20
marriage, and yet the Kansas Court of Appeals and the
21
Kansas Supreme Court both held that despite the
22
appearance of the marriage, despite the formal
23
registration of the certificate at the Department of
24
Vital Statistics, that it was a void marriage.
25
And so we're not doing anything for these
Aplt. App. # 000337
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1
plaintiffs if all we do is give them a piece of paper.
We aren't achieving what they've come here to court to
achieve, which is, as I understand it, not only the
appearance of marriage but the fact of marriage, a legal
marriage, a legally enforceable marriage.
To grant that relief, the Court would have to
effectively instruct all of the executive agencies, all
of the judges in the entire state of Kansas.
the way that is achieved is through declaratory
And -- and
10
judgment.
11
the lawsuit and issue a declaratory judgment that would
12
be binding on every one in privity with whoever the
13
defendants are at that stage.
14
The Court has to get to the -- to the end of
I happen to think that my client, Dr. Moser,
15
doesn't belong in this lawsuit, because he has
16
absolutely nothing to do with any of this except
17
registering completed certificates of marriage and
18
supplying some pieces of paper.
19
plausible to suggest that he has engaged in any sort of
20
unlawful activity under federal law.
21
And I do not find it
He simply hasn't.
He doesn't pass judgment.
He doesn't turn people
He doesn't say yes or no.
In -- it's my
22
away.
23
understanding that in the Gardiner case, Department of
24
Health and Environment, Office of Vital Statistics
25
registered that as a lawful marriage and -- and they did
Aplt. App. # 000338
385 of 446
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1
so in a routine manner because there was a Wisconsin
birth certificate that said that Mr. Gardiner's spouse
was -- was female.
KDHE's involvement in the process to -- to block
same-sex marriages.
And -- and so it just isn't part of
So -- so enjoining us means nothing.
If you were
to enjoin Dr. Moser, all you could enjoin him to do is
to prepare a new set of blank forms for applications,
which are -- which are essentially genderless.
10
11
12
THE COURT:
Has the bride and groom
designation always been on the application?

MR. FABERT:
I don't know.
I know that the
13
form that's currently used dates back to 2010, which is
14
-- which is the last time the statutes were updated and
15
-- and I think it's ancient.
16
Dr. Moser didn't think up that part of the form and his
17
subordinate that is in charge of the Office of Vital
18
Statistics didn't think of that either.
19
I'm -- I'm pretty sure
We have serious questions as to whether the
20
defendant clerks are proper defendants under the --
21
under the Bishop case.
22
determined that a clerk was not a proper defendant where
23
the grievants related to whether the marriage would be
24
treated as lawful or not.
25
The Bishop case ultimately
Now, again, we're not here to discuss the
Aplt. App. # 000339
386 of 446
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1
potential upcoming motion to dismiss.
to point out that these issues are on the horizon.
They're there.
to whether -- whether -- even if we had the same
parties, whether we could have offensive collateral
estoppel apply and we absolutely don't have the same
parties.
8
9
We're just here
That they raise legitimate concerns as
And it is -- it's -- certainly it's what

plaintiffs would like to have happen, for the Court
10
ultimately to determine after the case has been
11
litigated in full that there are no material
12
distinctions between Oklahoma law and Kansas law,
13
between Utah and -- and Kansas law, but we certainly
14
don't concede that.
15
distinctions not just the question of our having a
16
pre-existing determination of -- of constitutionality.
17
I think there are many very serious
So we think, especially if, Your Honor, will look
18
up and -- and read that Atlantic Coast Line Railroad
19
Company case, that that case makes it pretty plain that
20
federal courts are not to enter orders, even if the
21
orders are directed only at the litigants in the federal
22
court case, which would have the effect of undoing
23
injunctive relief that's already been granted by a state
24
court, and that's what I think is really going on in
25
this case.
Aplt. App. # 000340
387 of 446
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1
2
THE COURT:
All right.
Thank you very
much --
MR. FABERT:
THE COURT:
Thank you.
-- for your argument.
Miss Willoughby, I'll hear from you with
supplemental, amplification and the like.
you again.
8
9
MS. WILLOUGHBY:
Nice to see
May it please the Court,
I'm here on behalf of the two court clerks, Douglas
10
Hamilton and Bernie Lumbreras.
11
Dr. Moser has argued today and including the request for
12
a stay should any preliminary injunction be granted.
13
We would join in what
In terms of the Court's specific questions
14
regarding the application of the 1996 amendments to
15
Section 1983 regarding the availability of preliminary
16
injunctive relief against judicial officers, I would
17
make a few additional --
18
THE COURT:
19
MS. WILLOUGHBY:
20
21
Please.
-- supplemental points on
that.
The language of the statute is -- is interesting,
22
the language of the amendment, 1983, that says, "Except
23
in any action brought against a judicial officer for an
24
act or omission taken in such officer's judicial
25
capacity, injunctive relief shall not be granted unless
Aplt. App. # 000341
388 of 446
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1
a declaratory decree was violated or declaratory relief
was unavailable."
Now, I guess I'm being sort of a plain language
person, they -- the congress did choose to use the term
judicial officer.
but rather they -- they said judicial officer.
They could have used the term judge,
In this case the question is are the clerks
judicial officers.
Under our Kansas statutes, both clerks and judges issue
It's an interesting situation.
10
marriage licenses or are able to issue marriage
11
licenses.
12
weren't doing it, the judges would be.
13
under Kansas law they're sort of indistinguishable on
14
this function.
So in performing this function, if the clerks

So in that case
15
Another point I would make -- and they are acting
16
as an aid to the judges of their districts in performing
17
that function.
18
judges, but the clerks are the ones that are performing
19
this in aid of their respective judges.
20
There are, you know, 105 clerks, 246
It's interesting in the cases that we cited, that
21
Dr. Moser and I both cited in our -- in our filings,
22
including a Tenth Circuit case, it's interesting that
23
the Circuit held that these clerks were performing
24
judicial functions even on something that a lot of us as
25
lawyers would regard as ministerial.
Aplt. App. # 000342
The entry of a
389 of 446
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1
default judgment, for example, you would say, well, how
much judgment's involved in that.
Circuit cases we've cited, they said that was a judicial
function.
But in the Tenth
The other thing that I think is very, very
important in this case that has been kind of obscured is
in the complaint plaintiffs alleged that the person who
denied them their license or their application was a
judge in fact.
For example, in Sedgwick County, Chief
10
Judge Fleetwood, James Fleetwood, he is not here.
11
haven't sued him, but that's whose order they're really
12
challenging here.
13
They
Same thing in Douglas County, it was denied on
14
administrative order of Chief Judge Fairchild.
15
attached to our affidavit.
16
remark -- the judge makes the remark about it being --
17
18
19
THE COURT:
That is
In that he does make the
He calls it a ministerial
function.
MS. WILLOUGHBY:
Yeah, yeah.
But then at
20
the end he makes a direction to his clerks, said the
21
clerk shall not issue a marriage license to these
22
applicants or to any other applicants of the same sex.
23
And he enters an order.
24
It's certified.
25
the reason why Douglas Hamilton is not issuing a license
He signs it.
It's sealed.
That is that judge's order and that is
Aplt. App. # 000343
390 of 446
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1
2
3
4
to these applicants.
So the person who is being challenged is Judge
Fairchild and Judge Fleetwood.
THE COURT:
Yeah, but when I read the
plaintiffs' reply on this and their discussion, I think
it's the Sparkman case, it does not seem that the --
that this determination turns on the person's title,
whether it be judge or clerk.
It goes to sort of the
organic core of the function.
Is it something we
10
11
12
13
14
15
normally see done in a courtroom or in chambers?

MS. WILLOUGHBY:
Oh, I don't think that's
the test and respectfully, I mean -THE COURT:
Isn't that what the Tenth
Circuit said in Bishop?

MS. WILLOUGHBY:
Well, when I -- I'm
16
thinking more broadly in terms of judicial function.
17
And normally how that comes up, you know, is on judicial
18
immunity and what the scope of that is.
19
broad that basically only actions taken with that -- you
20
know, without any jurisdiction aren't covered -- covered
21
by judicial immunity, and also a common-law judicial
22
immunity was extremely broad.
23
judicial function, there's a lot of different cases that
24
discuss it for different reasons.
25
THE COURT:
And that is so
So that question about
Yeah, I was just going to ask,
Aplt. App. # 000344
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1
do you think this is the same -- it's the same test as
used -- as is used in the immunity context?
MS. WILLOUGHBY:
I think that's more on
point because, of course, what Congress was doing in
1996 with that amendment was overruling, you know,
Pulliam versus Allen.
you know, are judges immune or aren't they to this kind
of -- to injunctive relief, and the dissent was very,
very strong, of course, Justice O'Connor said this is
10
11
And the whole thing there was,
subject to judicial immunity.

And so that's the thing one can -- if one starts
12
analyzing that too closely too, are you -- are you
13
evading the Congress' intent?
14
immunity by -- by scrutinizing it to that degree?
15
do think the test here it's more interesting than that,
16
because we are not talking about a routine matter
17
obviously or we wouldn't be here.
18
Are you undermining the

But I
The statute itself basically says that the clerks
19
shall issue licenses -- or clerks or judges shall issue
20
licenses to those who are legally entitled.
21
obviously that's going to involve a determination or at
22
least it does in this case.
23
So
So in that case a determination was made by the
24
judges, not the clerks.
25
just come in, pay your 85.50 and, boom, you're out the
So it really wasn't, well, I
Aplt. App. # 000345
392 of 446
45
14-CV-02518-DDC
1
door.
And you can see Judge Fairchild sort of discussing it
and saying present Kansas law says no.
the Tenth Circuit doesn't, you know, basically bind us;
those cases didn't involve our constitution.
basically making a judicial determination.
It was -- there had to be a determination made.
I -- you know,
So he's
So in this particular case under these particular
facts, it's clear that Judge Fleetwood and Judge
Fairchild are really the actors involved in making these
10
decisions and judicial determinations.
11
And we would also just have the -- recommend the
12
Court to look back at those cases we cited, the Tenth
13
Circuit cases, because they had -- they were pretty
14
broad on what they considered the judicial function for
15
purposes of those clerks in those cases.
16
one were to look at what they were doing, it probably --
17
it might not stand up to some tests of what is a
18
judicial function.
19
the Circuit had no problems saying the clerk was
20
performing a judicial function.
Even though if
But in those Tenth Circuit cases,
21
The other point, and I think, Your Honor,
22
corrected all of us and the state is not here --
23
THE COURT:
24
MS. WILLOUGHBY:
25
here.
I corrected myself.
Yeah.
The state's not
All we have are two court clerks and a secretary
Aplt. App. # 000346
393 of 446
46
14-CV-02518-DDC
1
of Health and Environment.
Court asks I think is one that I think we have all
struggled with is what exactly are they seeking and from
whom.
action on the front end and a class action on the back
end in terms -- without going through any of the
procedural requirements that would get us to that point.
8
9
So that question that the
Because what we sort of have is kind of a class
And on a point that I did make in one of my

filings about the Burford abstention, and I realize
10
that's a fairly arcane doctrine and often not apply, but
11
the circumstances here are so unique in the sense that
12
we have a -- a unified judicial system in Kansas.
13
that's been the case ever since court unification in the
14
1970s.
And
15
Prior to unification, it might have made a little
16
bit more sense to just pick a couple of clerks at random
17
because they were, you know, county courts and pretty
18
much independently operating parts.
19
of a unified system, or at least the clerks are, under
20
the supervision of the Kansas Supreme Court.
21
Now, we're all part
And so in the interest of uniformity, which is
22
what the Supreme Court was talking about -- I agree with
23
you in terms of the language in terms of the parties who
24
that was directed at.
25
struggle is there, as far as who's before the court and
I think to some degree the same
Aplt. App. # 000347
394 of 446
47
14-CV-02518-DDC
1
what is the relief.
interested in uniformity within the courts under its
jurisdiction and not one rule in Johnson County and a
different rule in the other 104 counties in Kansas.
But the court did say it was
Whether that will be resolved after the 6th, as
we've all said, it's hard to say.
court system, you know, subject to the Supreme Court's
order in that sense in that case, by implication that is
also -- the Supreme Court's also their supervisor
But not only is the
10
constitutionally, statutorily.
11
to enjoin all of the U.S. district courts by naming one
12
clerk or all the judges by naming one clerk.
13
It would be like trying
It's -- it's -- it goes beyond what Rule 65 even
14
contemplates in that sense.
15
arguments against Burford abstention was that it
16
wouldn't create a non-uniform result because the
17
injunction would apply statewide, and they didn't -- the
18
authority they cited for that does not stand for that.
19
I know Your Honor's looked at those cases and they're
20
really not about the scope of Rule 65.
21
And so one of their
In this case we've got 105 court clerks, 246
22
judges, 31 chief judges, seven Supreme Court justices
23
and only -- we've only got two clerks here.
24
25
THE COURT:
Of course if they'd sued clerks
they haven't applied to, I suspect you all would be
Aplt. App. # 000348
395 of 446
48
14-CV-02518-DDC
1
saying that they don't have standing to sue them.
a little bit of a box that your argument puts them in.
MS. WILLOUGHBY:
Well, true.
It's
And I think
that's one of the problems with this formula, as you
see, you know, in the cases, this wheel's been invented
elsewhere.
what you're seeking and it -- and who are the right
plaintiffs.
it depends on the relief that's being requested, which
10
And it's a difficult one and to some extent
is still a little vague.
11
12
You know, who were the right defendants for
THE COURT:
I think today they said they're
-- the preliminary relief they seek goes to licensure.
13
MS. WILLOUGHBY:
Right.
So if they were
14
just seeking one license, that they be granted their
15
particular licenses, and -- and those licenses be filed,
16
well, that is one thing.
17
scope of what they're interested in and --
But I suspect that's not the
18
THE COURT:
19
MS. WILLOUGHBY:
Well, maybe not ultimately.

Right.
The whole complaint
20
is -- you know, it goes well beyond talking about
21
licensure.
22
wanted to respond to.
23
24
25
And so those are the points that I felt I
Is there anything else about the clerks'

functions or roles that I could respond to?
THE COURT:
I don't think so.
Aplt. App. # 000349
Thank you
396 of 446
49
14-CV-02518-DDC
1
very much for your argument.
MS. WILLOUGHBY:
THE COURT:
Mr. Bonney, would
Very briefly, Your Honor.
promise not to take up too much of the Court's time.

THE COURT:
MR. BONNEY:
10
All right.
MR. BONNEY:
Thank you.
you bring us home.
5
6
I do appreciate it.
I'm here all day.

I understand that and I can be,
but I'm sure neither one of us wants to be here on this

all day.
11
The papers, as Your Honor said, address almost
12
all of this in great detail.
13
that.
14
said here in argument today.
15
I'm not going to go over
I want to make a few points about what has been
One is this idea that what -- what are we here
16
for?
17
plaintiff -- two sets of plaintiffs applied for licenses
18
in two different counties and they were denied because
19
the judges in those counties decided that licenses
20
couldn't be issued because of the ban on same-sex
21
marriage in Kansas.
22
have put this on a batting tee for the Court.
23
the issue.
24
constitutional questions.
25
this case.
As Your Honor said, we're here because two
That's what we're challenging.
We
That is
This Court has jurisdiction over federal

That is what is at issue in
Aplt. App. # 000350
397 of 446
50
14-CV-02518-DDC
1
These plaintiffs do not want to be married by
common-law.
licensure system, which, as counsel for the Defendant
Moser said, is a separate system in Kansas.
two ways to become married.
choice of every other Kansan, they want to be married
through the licensure system.
challenging, the licensure system is being denied to
them because of the state's unconstitutional ban on
They want to be married through the
There are
Our plaintiffs have the
That's what we are
10
same-sex marriage.
11
this other stuff is, frankly, distracting noise.
That is what we're here about.
All
12
The fact that judges -- the only judge who made a
13
decision here is the judge in Sedgwick County, the chief
14
judge.
15
licenses.
16
a license to be issued in the future for people in
17
Douglas County and Sedgwick County and our clients in
18
particular.
19
But we're not challenging the past denials of

We're asking for prospective relief.
We want
So we are suing a proper defendant in each case,
20
and that is the district court clerks for Sedgwick and
21
Douglas County, who under the Kansas statutory scheme
22
section -- K.S.A. Section 23-2505(a) gives -- provides
23
for a mandatory duty for either judges or clerks to
24
issue licenses to anybody who qualifies, and the
25
qualification standards in Kansas are you got to be over
Aplt. App. # 000351
398 of 446
51
14-CV-02518-DDC
1
18 or fit in a exception.
blood.
And currently you have to not be of the same sex as the
spouse you want to marry.
here challenging.
You have to not be related by
You have to be not married to another person.
That last part is what we're
That's an unconstitutional provision.
THE COURT:
Your relief doesn't really say a
court order these clerks to issue a marriage license to
these plaintiffs.
MR. BONNEY:
10
THE COURT:
Right.
It says:
Tell these clerks they
11
can't enforce the same-sex prohibition as a reason not
12
to issue a license.
13
MR. BONNEY:
Correct.
Which is exactly the
14
injunctive relief that was sought against the district
15
court clerk in Oklahoma, in Tulsa County, Oklahoma in
16
Bishop, and is exactly what the Tenth Circuit upheld in
17
that case.
18
Briefly I just want to address a couple of other
19
things.
20
cert in the seven marriage cases of October 6th, the
21
fact that district court judges started getting involved
22
in these decisions doesn't make it a judicial act.
23
is a ministerial act still.
The fact that the judges, after the denial of
It
24
And what I would -- the new evidence that's been
25
put in today, I would recommend to the Court looking at
Aplt. App. # 000352
399 of 446
52
14-CV-02518-DDC
1
the state's brief -- the attorney general's brief in
support of its petition on mandamus.
look at that, and I can tell the Court where in those
papers -- this is maybe I say that.
papers filed on the mandamus petition --
6
7
THE COURT:
Because when you
It -- in -- in the
Do you know which exhibit you're
looking at?
MR. BONNEY:
THE COURT:
10
MR. BONNEY:
I think that is -Is it Exhibit -Exhibit 2 or -- no, it's
11
Exhibit 3 of the -- Document 23, document entry 23
12
Exhibit 3.
13
THE COURT:
14
MR. BONNEY:
Okay.
And so if you look at -- at
15
that brief, the attorney general is arguing at pages 10
16
and 12 in particular of the brief.
17
would say, diametrically the opposite thing there that
18
they're telling this Court.
19
They're arguing, I
In the brief on the mandamus petition, the
20
attorney general is telling the Kansas Supreme Court
21
that district court judges and clerks are "bound by the
22
Kansas Constitution, and in the Matter of the Estate of
23
Marshall G. Gardiner, to enforce the prohibition on
24
same-sex marriage."
25
The attorney general goes on to point out that a
Aplt. App. # 000353
400 of 446
53
14-CV-02518-DDC
1
judge or clerk who issues a marriage license in
contravention of that Kansas law is committing a
misdemeanor, and that "there can be no discretion to
perform an official act that is punishable as a
misdemeanor and no authority to order subordinates to
perform such unlawful acts."
That's at page 10.
Then later on page 12 the attorney general refers
to "the mandatory duties of clerks and judges to issue
marriage licenses only to persons with the statutory
10
11
right to marry."
It's page 12.
Mandatory duties, I would submit, are the
12
definition of ministerial acts.
13
that in issuing marriage licenses, the district court
14
clerks and judges, because it's phrased in the
15
disjunctive in the statute, judges or district court
16
clerks, shall issue licenses, are engaged in ministerial
17
act over which there's no discretion and as to which
18
there are absolutely bound to comply with Kansas laws
19
prohibiting same-sex marriage even if they believe doing
20
so is unconstitutional.
21
These arguments show
I think that may well be what the Kansas Supreme
22
Court decides.
23
what the Kansas Supreme Court will decide when it
24
decides the mandamus petition.
25
There's been a lot of speculation about
In my practice, I always tell my clients I never
Aplt. App. # 000354
401 of 446
54
14-CV-02518-DDC
1
predict what courts are going to do.
to the point of not doing it.
has speculated, I will speculate too.
possible the Kansas Supreme Court will not reach the
constitutional issue here.
I think it's risky
But since everybody else

So it's quite
This morning a few hours before the hearing, we
received the new brief.
you, the Court, that I did not read all the cases cited
by Justice Ginsburg in the Exxon case, but the holding
I looked at it.
I will tell
10
of the case pulls the rug out from under the State's
11
argument here.
12
Rooker-Feldman has absolutely nothing to do with
13
this case.
14
today -- the Rooker -- "The Rooker-Feldman doctrine, we
15
hold today, is confined to cases of the kind from which
16
the doctrine acquired its name: cases brought by
17
state-court losers complaining of injuries caused by
18
state-court judgments rendered before the district court
19
proceedings commenced and inviting district court review
20
and rejection of those judgments.
21
not otherwise override or supplant preclusion doctrine
22
or augment the circumscribed doctrines that allow
23
federal courts to stay or dismiss proceedings in
24
deference to state-court actions we're not asking."
25
It's -- the court says in Exxon, We hold
THE COURT:
Rooker-Feldman does
What page are you reading from?
Aplt. App. # 000355
402 of 446
55
14-CV-02518-DDC
1
MR. BONNEY:
THE COURT:
MR. BONNEY:
284.
Thank you.
That would be -- that would be
the U.S. Reports.
THE COURT:
MR. BONNEY:
U.S.
Feldman, you know, dealt with
admission of attorneys to the bar.
and there are lots of cases that say, including Feldman,
that decisions by courts on issues of admission of
And in Feldman --
10
attorneys to the bar is a judicial act.
11
true.
12
says, "The crucial question was whether the proceedings
13
in the D.C. court were judicial in nature."
14
And that's
And so Justice Ginsburg in the Exxon case at 285
So that's the key question in all of these
15
arguments of the amendments to 1983 and 1996 under the
16
Judicial Improvements Act and just regular judicial
17
immunity or quasi-judicial immunity.
It's always is it
18
a judicial act.
I'm not going to
19
go into it right now.
20
We've briefed this.
The -- it's my guess -- Mr. Johnson and I are
21
both former -- I'm a former labor lawyer.
22
Mr. Johnson may still be a labor lawyer sometimes.
23
guess is the Atlantic Coast Railroad case is
24
distinguishable, but I haven't really had a chance to
25
look at it.
Aplt. App. # 000356
I think
My
403 of 446
56
14-CV-02518-DDC
1
Gardiner, Gardiner has nothing to do with this
case.
binding on this Court.
decide any issues of constitutional law.
Appellate Court's decision was pre-Lawrence versus Texas
which was decided 2003, and so what -- there's no
relevance to Gardiner.
8
9
Decisions of the Kansas Supreme Court are not

The Kansas Supreme Court didn't
The Kansas
I think I already addressed the common-law

marriage issue.
10
And, finally, we've got to start somewhere.
So
11
we're starting with licensure.
12
Wyoming and other states, the states have thrown in the
13
towel.
14
but they might and that might lead us not to have to
15
file recognition cases in other circumstances.
16
now we have a licensure case.
17
pursuing.
18
you, Your Honor.
If -- you know, in
Kansas doesn't have to do that if we prevail,
Right
That's what we're
We ask for the preliminary injunction.
Thank
19
THE COURT:
20
for your arguments this afternoon.
21
called to prepare on short notice, and I appreciate the
22
effort that it takes to, on short notice, get this many
23
ideas into your head and talk about them as cogently as
24
you all did.
25
Counsel.
Thank you very much

I know you were
I'm going to take the motion under advisement.
Aplt. App. # 000357
404 of 446
57
14-CV-02518-DDC
1
-- this is something that we will decide by written
order, and my training is that a big part of getting it
right is to get it written because you need to make sure
that the ideas that are in your head will write.
We'll do that as promptly as we can.
I'm not a
long-term judge but I'm long-term enough not to promise
a specific day, but we are aiming to turn it around
quickly.
for your submissions and your participation here today
10
11
It will not be today.
So thank you very much
and we'll be in recess on this case.
Thank you.
(Proceedings adjourned.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Aplt. App. # 000358
405 of 446
Document: 01019377512
Page: 363
58
CERTIFICATE
2
3
STATE OF KANSAS
4
5
|
|
COUNTY OF WYANDOTTE
ss
6
7
I, Kimberly R. Greiner, CSR, RMR, CRR, a
Certified Shorthand Reporter for the State of Kansas, do
hereby certify that as such reporter I was present at
10
and reported in machine shorthand the above and
11
foregoing proceedings.
12
I further certify that a transcript of my
13
shorthand notes was prepared and that the foregoing
14
transcript is a true and correct transcript of my notes
15
in said case to the best of my knowledge and ability.
16
17
18
/s/KIMBERLY R. GREINER
KIMBERLY R. GREINER, CSR, RMR, CRR
19
20
21
22
23
24
25
Aplt. App. # 000359
406 of 446
Document: 01019377512
Page: 364


DITRANI, JAMES E. PETERS and GARY A.
MOHRMAN; CARRIE L. FOWLER and
SARAH C. BRAUN; and DARCI JO
BOHNENBLUST and JOLEEN M.
HICKMAN,
Plaintiffs,
v.
)
)
)
)
)
)
(
)
)
)
)
)
)
)
)
NICK JORDAN, in his official capacity as
)
Secretary of the Kansas Department of Revenue, )
LISA KASPAR, in her official capacity as Director )
of the Kansas Department of Revenues Division )
of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee
)
Health Plan,
)
Defendants.
)
_________________________________________)
MOTION TO DISMISS AMENDED COMPLAINT
Defendants Douglas A. Hamilton and Bernie Lumbreras, Clerks of the District Court of the 7th
and 18th Judicial Districts respectively, move the Court for an Order dismissing them from this action.
The Chief Judges in both the 7th and 18th Judicial Districts, Judge Fairchild and Judge
Fleetwood, respectively, the appointing authorities for Hamilton and Lumbreras, have entered
1
Aplt. App. # 000360
407 of 446
Document: 01019377512
Page: 365
Administrative Orders providing that marriage licenses will be issued to same-sex applicants on the
same basis as other applicants. The Amended Complaint seeks no relief against the Clerks and indeed
none can be afforded that has not already been made available to these Plaintiffs. The claim against the
Clerks must be dismissed for lack of standing, lack of a present case or controversy, or as moot; this
claim is not within the Article III jurisdiction of this Court, or is prudentially moot. The claim against
the Clerks is also barred by Eleventh Amendment immunity. In the alternative, Plaintiffs have failed to
join necessary and indispensable parties as required by Fed. R. Civ. P. 19.
As required by D. Kan. 7.6, a memorandum in support of the motion to dismiss is submitted
herewith.
This action against the Clerks must be dismissed for lack of jurisdiction. For this reason and as
elaborated upon in the attached Memorandum, Douglas A. Hamilton, Clerk of the District Court for
the 7th Judicial District, and Bernie Lumbreras, Clerk of the District Court for the 18th Judicial District,
move this Court for an Order dismissing them from this action.
DEREK SCHMIDT
/s M.J. Willoughby_____________
Tel: (785) 296-2215
Fax: (785) 296-6296
Aplt. App. # 000361
408 of 446
Document: 01019377512
Page: 366
This is to certify that on this 10th day of December, 2014, a true and correct copy of the above
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 with a courtesy copy served by email upon Joshua A. Block, American
Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004, jblock@aclu.org and
Steve R. Fabert, Assistant Attorney General, Attorney for Defendant Robert Moser.
/s M.J. Willoughby_________________
M.J. Willoughby, Assistant A.G.
Aplt. App. # 000362
409 of 446
Document: 01019377512
Page: 367


DITRANI, JAMES E. PETERS and GARY A.
MOHRMAN; CARRIE L. FOWLER and
SARAH C. BRAUN; and DARCI JO
BOHNENBLUST and JOLEEN M.
HICKMAN,
Plaintiffs,
v.
)
)
)
)
)
)
(
)
)
)
)
)
)
)
)
NICK JORDAN, in his official capacity as
)
Secretary of the Kansas Department of Revenue, )
LISA KASPAR, in her official capacity as Director )
of the Kansas Department of Revenues Division )
of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee
)
Health Plan,
)
Defendants.
)
_________________________________________)
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT
Defendants Douglas A. Hamilton and Bernie Lumbreras, Clerks of the District Court of the 7th
and 18th Judicial District respectively, submit this Memorandum in support of their motion for an Order
dismissing them from this action for lack of lack of subject matter jurisdiction, including Eleventh
Amendment immunity, lack of an Article III case or controversy, lack of standing and mootness. As an
1
Aplt. App. # 000363
410 of 446
Document: 01019377512
Page: 368
alternative, Plaintiffs have also failed to join indispensable, but immune parties, the Chief Judges of the
Districts in question. The Clerks must be dismissed as defendants from this action.
NATURE OF THE MATTER BEFORE THE COURT
On November 26, 2014, Plaintiffs filed an Amended Complaint. (Doc. 52). The sole claims
against the Clerks are by the original Plaintiffs, Marie, Brown, Wilks and DiTrani, who have made no
effort since November 13, 2014, to obtain a marriage license, despite the entry of Administrative
Orders by Chief Judges in both Districts allowing for issuance of same-sex marriage licenses. Any
allegation that Marie, Brown, Wilks or DiTrani are being prevented from receiving a license Hamilton
or Lumbreras is patently and demonstrably false in an apparent attempt to manufacture or maintain
jurisdiction where no basis exists.1
QUESTIONS PRESENTED
1. Have Plaintiffs Marie, Brown, Wilks and DiTrani met their burden of showing a
jurisdictional basis for their claims that they are currently being denied a marriage
license by Clerks Hamilton and Lumbreras?
2. In the alternative, assuming jurisdiction, should this action be dismissed for failure to
join necessary but indispensable parties?
STATEMENT OF FACTS
1. Douglas Hamilton and Bernie Lumbreras are Clerks of the District Court in Douglas and
Sedgwick Counties respectively. Am. Complt. (Doc. 52), at 12-13.
2. As Clerks, Mr. Hamilton and Ms. Lumbreras are officers of the State of Kansas, appointed
The Amended Complaint adds new Plaintiffs, Peters, Mohrman, Fowler, Braun, Bohnenblust and Hickman, none
of whom assert any claims against Clerks Hamilton and Moser. The new Plaintiffs are not requesting marriage licenses, but
rather demand recognition of licenses, including out-of-state licenses by the new Defendants, Nick Jordan, Secretary of
Revenue, Lisa Kaspar, Director of Kansas Department of Revenues Division of Vehicles and Mike Michael, Director of the
State Employee Health Plan. In any event, as a matter of law, the Clerks are not proper defendants on a non-recognition
claim. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014).
Aplt. App. # 000364
411 of 446
Document: 01019377512
Page: 369
by and subject to supervision by the Chief Judges of their respective judicial districts.
K.S.A. 2014 Supp. 20-343.2
3. Appointed clerks, their deputies and assistants have such powers, duties and functions as
are prescribed by law, prescribed by rules of the supreme court or assigned by the chief
judge. K.S.A. 20-343. The clerks of the district court shall do and perform all duties that
may be required of them by law or the rules and practice of the courts. . .. K.S.A. 20-3102.
4. Kansas is a unified court system. K.S.A. 20-101, Kan. Const. Art. 3, 1 ([t]he supreme
court shall have general administrative authority over all courts in this state); K.S.A. 2014
Supp. 20-318, K.S.A. 2014 Supp. 20-319. In Kansas, the district courts are organized into
thirty-one (31) judicial districts. Kan. Const., Art. 3, 6; K.S.A. 4-202, et seq. Chief
Judges, including Judge Fairchild and Judge Fleetwood, are subject to appointment by and
supervision of the Kansas Supreme Court. See, e.g., K.S.A. 2014 Supp. 20-329. Clerks of
the District Court Hamilton and Lumbreras, are Kansas Judicial Branch officers, appointed
by their respective Chief Judges and are Judicial Branch employees. K.S.A. 2014 Supp. 20343, K.S.A. 2014 Supp. 20-345. As of June 30, 2013, there were 246 district judges in
Kansas.
Annual Report of the Courts of Kansas, FY 2013, available at
http://intranet.kscourts.org:7780/stats.3
5. The only claim in the Amended Complaint against Clerks Hamilton and Lumbreras is an
official capacity claim by Plaintiffs Marie, Brown, DiTrani and Wilks. See Am. Complt.
(Doc. 52), at 22, 75, 76.
6. The sole claim asserted by Plaintiffs Marie, Brown, DiTrani and Wilks is that as of October
9, 2014, they were not issued marriage licenses at the Douglas County or Sedgwick County
2
K.S.A. 20-343, along with other statutes concerning the Judicial Branch, was amended in 2014. 2014 Sess. Laws
Ch. 82. A current version appears at http://ksrevisor.org/statutes.
3
A court may take judicial notice under Fed. R. Evid. 201 of information on the Internet. See OToole v. Northrop
Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007).
Aplt. App. # 000365
412 of 446
Document: 01019377512
Page: 370
Clerks Offices. See Id., at 22-29.

7. On November 13, 2014, Administrative Orders were entered by the Chief Judges in the 7th
and 18th Judicial Districts (Douglas and Sedgwick Counties), respectively, ordering the
Clerks of those Courts to issue marriage licenses to same sex couples on the same terms as
opposite sex couples. Certified copies of those Orders are attached as Exhibits to Affidavits
of Douglas Hamilton and Bernie Lumbreras respectively.
8. The Amended Complaint was filed on November 26, 2014 (Doc. 52).
9. The Amended Complaint alleges no facts showing that Plaintiffs Marie, Brown, DiTrani or
Wilks appeared in the respective Clerks Offices on or after November 13, 2014, to request
issuance of a license. See Id.
10. In fact, none of these Plaintiffs has appeared in the Clerks Offices since November 13, 2014,
to request issuance of a license. See Affidavit of Douglas A. Hamilton; Affidavit of Bernie
Lumbreras.
11. The Clerks have nothing to do with recognition of marriage in Kansas for tax purposes or
intestate succession. Affidavit of Douglas A. Hamilton signed October 30, 2014; Affidavit
of Bernie Lumbreras signed October 29, 2014.
Clerks Hamilton and Lumbreras must be dismissed from this action as there is no factual basis
for a claim against them and no basis for jurisdiction of this Court. Although the Clerks join in the
Motion to Dismiss submitted by Defendant Moser (Doc. 57), as though wholly restated herein, the
Clerks will for the Courts ease of reference repeat portions of that filing here.
Aplt. App. # 000366
413 of 446
Document: 01019377512
Page: 371
The Legal Standard: Plaintiff Bears the Burden of Showing Jurisdiction

As stated by Defendant Moser, federal courts are courts of limited jurisdiction. Lack of
jurisdiction is presumed. The burden of establishing federal court jurisdiction falls on the party
asserting that jurisdiction exists.4 As Judge Robinson of this District stated the well-established law,
Federal courts are of limited jurisdiction and, as such, must have a statutory or constitutional basis to
exercise jurisdiction. A court lacking jurisdiction must dismiss the case, regardless of the stage of the
proceeding, when it becomes apparent that jurisdiction is lacking. The party who seeks to invoke
federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Thus, plaintiff
bears the burden of showing why the case should not be dismissed. Mere conclusory allegations of
jurisdiction are not enough.5
In particular, [a] plaintiff must maintain standing at all times throughout the litigation for a
court to retain jurisdiction.6 A plaintiff must show a personal stake in the outcome. 7 Since federal
courts are courts of limited jurisdiction, jurisdiction is subject to continuing review and to satisfy
constitutional case or controversy requirements, the controversy must be extant at all stages of the
action. 8 Although counsel have a duty to advise the Court of pertinent facts, including changing facts,
the federal courts have an independent duty given their limited jurisdiction not to allow parties to
collusively create jurisdiction where none exists. 9 When the facts upon which subject matter
jurisdiction depends are attacked, the court must look beyond the complaint and has wide discretion to
allow documentary and even testimonial evidence under Rule 12(b)(1). 10 In the case of a factual
See Devon Energy Production Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012); Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
5
See, e.g, Youssefi v. United States, No. 13-2174-JAR, 2013 WL 3755791 (D. Kan. July 15, 2013). (citations omitted).
6
Phelps v. Hamilton, 122 F.3d 1309, 13-15-16 (10th Cir. 1997) (quoting Powder River Basin Resource Council v. Babbitt, 54
F.3d 1477, 1485 (10th Cir. 1995)).
7
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
8
See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997); Phelps v. Hamilton, 122 F.3d at 1315-16.
9
Id., at 73 (citing Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986)); and n.23 (It is the duty of counsel to
bring to the federal tribunals attention without delay, facts that may raise a question of mootness.) (citation omitted).
10
Paper, Allied-Industrial, Chemical and Energy Workers Intern. Union v. Continental Carbon Co., 428 F.3d 1285, 1293
Aplt. App. # 000367
414 of 446
Document: 01019377512
Page: 372
attack upon subject matter jurisdiction, the Court is not required to assume the truth of the complaints
factual allegations.11
Eleventh Amendment Immunity Bars Plaintiffs Claim Against the Clerks
The Eleventh Amendment bars federal court lawsuits against a state or its officials acting within
their official capacities, with a narrow exception allowing for prospective injunctive relief against
individual officials for their ongoing violations of federal rights, the rule of Ex parte Young.12 Given
the undisputable facts, there is no basis for prospective injunctive relief against Clerks Hamilton and
Lumbreras as both Clerks are granting licenses to same-sex applicants as per Administrative Orders
entered in those Districts. Eleventh Amendment immunity requires dismissal of Plaintiffs claims
against Hamilton and Lumbreras.13
For similar and related reasons, state officials sued in their official capacities are not persons
subject to suit under 42 U.S.C. 1983.14 As noted by Dr. Moser, any claim against these Clerks for past
actions in their respective individual capacities is also barred by qualified immunity.15
The Claim Against the Clerks is Barred for Lack of Article III Jurisdiction
Plaintiffs Marie, Brown, DiTrani and Wilks have failed to show any basis for a continuing claim
against Clerks Hamilton and Lumbreras, whether that is discussed in terms of no standing (no injury in
fact, actual or imminent, concrete and particularized, traceable to actions of Defendants Hamilton and
Lumbreras), no irreparable harm (for purposes of Rule 65 injunctive relief), no case or controversy for
(10th Cir. 2005) (citation omitted); see also, GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir. 1997)
(when a plaintiff does not attach a document central to plaintiffs claim, a defendant may submit the document on a motion
to dismiss).
11
Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 (10th Cir. 2012).
12
209 U.S. 123 (1908).
13
See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1205-06 (10th Cir. 2013).
14
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); see also, Arizonans for Official English v. Arizona, 520
U.S. 43, 69-70 (1997) (citing Will), and n.24.
15
Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012).
Aplt. App. # 000368
415 of 446
Document: 01019377512
Page: 373
purposes of declaratory relief or other relief, or related doctrines of mootness depriving this Court of
subject matter jurisdiction under Article III, 2 of the U.S. Constitution.
Although cases are legion for these generally accepted, black-letter propositions, Arizonans for
English is an example of a case discussing these principles. There, the Plaintiff, a state employee,
brought the federal court action challenging a state statute as an individual, not as a class representative,
and voluntarily left state employment after filing her initial complaint. 16 In an opinion by Justice
Ginsburg, the Court held that Plaintiffs resignation from state employment made her claim for
prospective relief moot, [t]he case had lost the essential elements of a justiciable controversy, and the
action should have been dismissed.17 After discussing the lengthy procedural history of the case, the
Court noted that federal court jurisdiction is limited to cases or controversies as per the Constitution,
Article III, 2.18 Standing is an aspect of that requirement.19 To qualify as a party with standing to
litigate, a person must show, first and foremost, an invasion of a legally protected interest that is
concrete and particularized and actual or imminent.20 The Plaintiff must possess a direct stake in
the outcome, at all times, even on appeal.21 After Plaintiff Yniguezs resignation, the Court questioned
where there was still a case to pursue, whether there was a live case or controversy or whether the case
was moot, finding that the case was moot.22
In Arizonans for English, the Arizona Attorney General suggested that the case was moot when
the state employee Plaintiff resigned but the district court rejected that suggestion. 23
The Supreme
Court held that was wrong for a variety of reasons; in addition to the usual litigation question to be
routinely asked, Is this conflict really necessary?, the Court indicated the obligation to question
jurisdiction is particularly important where anticipatory relief is sought in federal court against a state
16
Arizonans for Official English v. Arizona, 520 U.S. at 48.

Id., at 48-49.
18
Id., at 64.
19
Id. (citation omitted).
20
Id., at 64 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
21
Id. (citation omitted).
22
Id., at 66-72.
23
Id., at 74.
17
Aplt. App. # 000369
416 of 446
Document: 01019377512
Page: 374
statute for reasons of federalism and respect for States.24 As noted above under Eleventh Amendment
immunity, the Arizonans Court also pointed out that relief in that case against state officials was barred
by the lack of a basis for prospective injunctive relief, a conclusion equally applicable here.25
The doctrine of mootness has been applied to bar claims for injunctive relief where there has
been a change of policy, as here, the Administrative Orders entered by the Chief Judges of their
respective districts. In such cases, public officials, including the Chief Judges who entered the orders
in question as well as the Clerks, are entitled to a presumption of good faith.26
As noted by Defendant Moser, declaratory relief is not available either given Plaintiffs claims
that the outcome is already controlled by Tenth Circuit precedents: As a general rule, where a law has
been declared unconstitutional by a controlling court, pending requests for identical declaratory relief
become moot.27
Here, the relief Plaintiffs initially sought from these Clerks, a license, is readily available; the
Clerks (because of Orders of their respective Chief Judges), have made licenses available to Plaintiffs
for the mere asking; there is no further relief to get or that this Court can give. Plaintiffs claim against
the Clerks for a license is moot.28 Although there are many decisions dismissing similar claims based
upon mootness, the Tenth Circuits decision in Southern Utah Wilderness Alliance v. Smith29 is an
example on point. There, an environmental organization sued federal agency defendants (Bureau of
Land Management (BLM) and the Secretary of Interior), for violation of the Endangered Species Act
for failing to consult the Fish and Wildlife Service (FWS) regarding the impact BLMs actions might
have on a threatened species of milkweed. After the case was filed, the complained of consultation
24
Id., at 74-75 (citations omitted).

Arizonans for English, 520 U.S. at 69-70 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)), and n.24.
26
See generally, 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 3533.7, p. 333, n.16 (3d ed.
2008 ) (noting that federal courts tend to trust public officials as opposed to private defendants, annotating cases).
27
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1269 (N.D. Okla.), affd sub nom. Bishop v. Smith, 760 F.3d
1070 (10th Cir. 2014), cert. denied, 135 S. Ct. 271 (2014).
28
See generally, 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 3533.7, n.12 (3d ed. 2008)
(annotating cases).
29
110 F.3d 724 (10th Cir. 1997).
25
Aplt. App. # 000370
417 of 446
Document: 01019377512
Page: 375
with FWS occurred. The district court entered summary judgment for defendants, but also found the
claim moot, as did the Circuit on appeal, which held that the case should have been dismissed.
The Circuit noted there are two different mootness doctrines, Article III mootness and
prudential mootness. Article III mootness is the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of the litigation (standing) must
continue throughout its existence (mootness). 30 The doctrine of prudential mootness relates to the
Courts remedial discretion and has particular applicability in cases, such as this one, where the relief
sought is an injunction against the government. 31 Under both doctrines, the central inquiry is
essentially the same: have circumstances changed since the beginning of the litigation that forestall
any occasion for meaningful relief. 32 The Circuit found that since the requested consultation had
already occurred, an injunction would redress no injury and a declaratory judgment was also
unavailable as it would serve no purpose.33 The Court found that even if the suit were not moot in the
Article III sense, it would be moot on considerations of prudential mootness.34
Closer to home, Judge Richard Rogers of this District faced this very situation in a case seeking
injunctive relief against the state lottery when the plaintiff moved out of state after the action was
instituted. In that case, Tyler v. Kansas Lottery, the plaintiff was in a wheelchair and wanted a
statewide permanent injunction forcing all retail lottery outlets in Kansas to conform with certain
requirements of the Americans with Disabilities Act.35 The matter was teed up for summary judgment
when it became clear that Tyler had moved to Wisconsin. 36 In assessing Tylers request for a
permanent injunction, Judge Rogers noted that an injunction is appropriate only where future conduct
is at issue. The moving party must satisfy the court that relief is needed. The necessary determination
30
110 F.3d at 727 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)).
Id. (citations omitted).
32
Id.
33
Id., at 729-30.
34
Id., at 730.
35
14 F. Supp. 2d 1220, 1222 (D. Kan. 1998).
36
Id., at 1221.
31
Aplt. App. # 000371
418 of 446
Document: 01019377512
Page: 376
is that there exists some cognizable danger of recurrent violation, something more than the mere
possibility which serves to keep the case alive.37
After noting the Plaintiffs continuing obligation to show standing in general and the particular
requirements for standing for injunctive relief (Plaintiff will suffer an injury in fact which is concrete
and particularized and actual or imminent, not conjectural or hypothetical, that the conduct complained
of will cause the injury alleged and that it is likely, not speculative, that the injury will be presented by
a favorable decision), Judge Rogers noted that Tyler may have wanted to help other disabled persons,
but the relief requested was for him as an individual.38 The Court found that although Tyler may have
had standing at the beginning, after moving to Wisconsin he lacked standing for injunctive relief or a
case or controversy; nor could he demonstrate the imminent threat of irreparable harm needed for
injunctive relief.39 The doctrine of standing bars this court from considering generalized grievances or
claims raising another persons legal rights. 40 Plaintiff must demonstrate that he is immediately in
danger of sustaining some direct injury as a result of defendants alleged illegal conduct. 41
Similarly here, assuming Plaintiffs Marie, Brown, DiTrani and Wilks were honest with the
Court when the initial Complaint was filed about wanting to get a marriage license, the only barrier
now is of their own making (i.e., their failure to go to the office to request issuance of a license, a selfinflicted injury).42 No other barrier, or basis for standing, case or controversy or prospective injunctive
relief exists. Although those coming before this Court to seek equitable relief bear burdens of
demonstrating good faith, clean hands, and that they are not slumbering on their rights, 43 a Plaintiff
37
Id., at 1223 (citations omitted).

Id., at 1224 (citing State of Utah v. Babbitt, 137 F.3d 1193, 1202 (10th Cir. 1998) (citing Bennett v. Spear, 520 U.S. 154
(1997)).
39
Id., at 1225-28 (citations omitted).
40
Id., at 1228 (citing State of Utah, 137 F.3d at 1203 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
41
Id., at 1228 (citing Phelps, 122 F.3d at 1316 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)).
42
See, e.g., Fiba Leasing Co., Inc. v. Airdyne Indus., Inc., 826 F. Supp. 38, 39 (D. Mass. 1993) (Injunction movant does not
satisfy the irreparable harm criterion when the alleged harm is self-inflicted.) (citing San Francisco Real Estate v. Real
Estate Invest. Trust of America, 692 F.2d 814, 818 (1st Cir. 1982)).
43
See, e.g, 11A C Wright, A. Miller, M. Kane, R. Marcus, A. Steinman, Federal Practice and Procedure (3d ed.) (citing
cases including United States v. Any and All Assets of that Certain Business Known as Shane Co., 816 F. Supp. 389, 400
38
10
Aplt. App. # 000372
419 of 446
Document: 01019377512
Page: 377
who fails to try to get the license or permit lacks standing as there is no injury, and certainly no injury
resulting from defendants actions.44 Manufactured standing, as is the case here, is disfavored.45
Plaintiffs Have Failed to Join Indispensable Parties
Since this is the Clerks first response to the Amended Complaint, the Clerks reassert what has
been obvious all along any decisions made regarding who is legally entitled to a marriage license are
made by judges, not clerks and in particular in this case, the past decisions complained of were made
by Chief Judges, not Clerks. The present Administrative Orders regarding licensing were entered by the
Chief Judges. Since the judges are the supervisory and appointing authority over these Clerks as per
K.S.A. 20-343, the Clerks are subject to that authority. Any injunction against the Clerks is only
effective to the degree that the Chief Judges, the real parties in interest, choose to honor it. No attempt
was made to join the judges in this action, and indeed, the attempt would have been futile given the
judges immunity even from injunctive relief under 42 U.S.C. 1983 and under general principles of
judicial immunity,46 in addition to all of the other reasons stated herein (e.g., given the current state of
affairs as evidenced by the judges Administrative Orders, there is no basis for prospective injunctive
relief as well as Eleventh Amendment immunity). Given this, it is clear that if this moot claim were
allowed to proceed, the action as to the Clerks fails under Fed. R. Civ. P. 19 for failure to join a
(M.D.N.C. 1991) (The court applies the clean hands doctrine, not for the protection of the parties, but for its own
protection.) (quoting Mas v. Coca-Cola Co., 163 F.2d 505, 507 (4th Cir. 1947)).
44
See Davis v. Tarrant County, Tex., 565 F.3d 214, 220-21 (5th Cir. 2009), cert. denied, 130 S. Ct. 624 (2009) (attorney had
no standing to challenge policy where he had previously been denied but did not reapply after change of policy);
Humanitarian Law Project v. U.S. Treasury Dept., 578 F.3d 1133, 1151 (9th Cir. 2009) (plaintiff organization lacked
standing where it had not been denied a license and had not applied); see, e.g., Gilles v. Davis, 427 F.3d 197, 208 (3d Cir.
2005) (protestors lacked standing for First Amendment challenge where they never applied for nor were they denied a
permit); Womens Emergency Network v. Bush, 323 F.3d 937 (11th Cir. 2003) (no standing to challenge Florida licensing
plates where plaintiffs never applied for or were denied a pro-choice license plate); Madsen v. Boise State Univ., 976 F.2d
1219 (9th Cir. 1992) (no standing to complain of failure to get free parking permit where plaintiff never formally applied for
one and did not show that such an application would be futile); Williams v. Taylor, 677 F.2d 510, 517 (5th Cir. 1982) (felon
who never applied for a pardon had no standing to complain that the state procedure as invalid).
45
Puckett v. Hot Springs School Dist No. 23-2, 526 F.3d 1151, 1160-63 (8th Cir. 2008) (plaintiffs had no standing where they
deliberately failed to request that the school district reinstate busing after a policy change in an attempt to create a case or
controversy.).
46
See Stump v. Sparkman, 435 U.S. 349 (1978).
11
Aplt. App. # 000373
420 of 446
Document: 01019377512
Page: 378
necessary and indispensable party under the analysis set forth in Citizen Potawatomi Nation v. Norton:
The question of whether an absent party is necessary and/or indispensable is resolved by
applying Rule 19 of the Federal Rules of Civil Procedure. Sac and Fox Nation of Missouri v.
Norton, 240 F.3d 1250, 1258 (10th Cir. 2001) (quoting Davis, 192 F.3d at 957). Rule 19 provides
a three-step process for determining whether an action should be dismissed for failure to join a
purportedly indispensable party. United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999).
First, the court must determine whether the absent party is necessary. A person is necessary if:
(1) in the persons absence complete relief cannot be accorded among those already
parties, or (2) the person claims an interest relating to the subject of the action and is
so situated that the disposition of the action in the persons absence may (i) as a
practical matter impair or impede the persons ability to protect that interest or (ii)
leave any of the persons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by reason of the claimed
interest.
Fed. R. Civ. P. 19(a); Bowen, 172 F.3d at 688. If the absent person is necessary, the court must
then determine whether joinder is feasible. See Fed. R. Civ. P. 19(a)-(b).47
In Citizen Potawatomi Nation, the Circuit affirmed the district courts dismissal of the action or
failure to join necessary and indispensable parties, the Indian tribes, who enjoyed immunity. The Chief
Judges here enjoy similar immunity. In telling the Wichita Plaintiffs that they were not legally entitled
to a marriage license under Kansas law, the Plaintiffs dealt with Judge Fleetwood in his judicial
capacity and in making a determination as to whether same-sex applicants were entitled to a license
under Kansas law performed a function normally performed by a judge making legal determinations
as to matters within the judges jurisdiction, performing a judicial function. 48 Judge Fairchild was
performing a similar function when he issued the initial Administrative Order in this case. 49 Since this
Court considered the matter in connection with the request for preliminary injunction, the Kansas
Supreme Court held in the mandamus case regarding Johnson County Judge Kevin Moriarty as per the
attached Order that Judge Moriarty was performing a judicial function in entering the Administrative
47
248 F.3d 993, 997 (10th Cir. 2001).

Stump, 435 U.S. at 362; State of Kansas ex rel. Schmidt v. Moriarty, No. 112,590 (Kan. Nov. 18, 2014), attached as an
Exhibit hereto.
49
Id.
48
12
Aplt. App. # 000374
421 of 446
Document: 01019377512
Page: 379
Order in that case.50 Although the subsequent Orders are entitled Administrative, the function, not the
label controls and here, the Judges were making legal determinations as to what the law required,
applying law to facts and to particular cases, which is the essence of the judicial function as the Kansas
Supreme Court recognized in Moriarty.51 To state the obvious, the Clerks are mere straw persons,
pawns in Plaintiffs game, sued as the easiest and most convenient target. If Plaintiffs claims against
the Clerks are allowed to proceed notwithstanding all of the jurisdictional problems stated above herein,
the case must nonetheless be dismissed for failure to join indispensable parties as required by Fed. R.
Civ. P. 19.
CONCLUSION
As there is no basis for jurisdiction or a claim against them, Douglas A. Hamilton, Clerk of the
District Court for the 7th Judicial District, and Bernie Lumbreras, Clerk of the District Court for the 18th
Judicial District, move this Court for an Order dismissing them from this action.
DEREK SCHMIDT
/s M.J. Willoughby________________
Tel: (785) 296-2215
Fax: (785) 296-6296
50
51
State of Kansas ex rel. Schmidt v. Moriarty, No. 112,590 (Kan. Nov. 18, 2014), attached as an Exhibit hereto.
Id.
13
Aplt. App. # 000375
422 of 446
Document: 01019377512
Page: 380
This is to certify that on this 10th day of December, 2014, a true and correct copy of the above
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 with a courtesy copy served by email upon Joshua A. Block, American
Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004, jblock@aclu.org and
Steve R. Fabert, Assistant Attorney General, Attorney for Defendant Robert Moser.
/s M.J. Willoughby___________
M.J. Willoughby, Assistant A.G.
14
Aplt. App. # 000376
423 of 446
Document: 01019377512
Page: 381
Case 2:14-cv-02518-DDC-TJJ Document 59-1

57-6 Filed 12/10/14 Page 1 of 3
Aplt. App. # 000377
424 of 446
Document: 01019377512
Page: 382

57-6 Filed 12/10/14 Page 2 of 3
Aplt. App. # 000378
425 of 446
Document: 01019377512
Page: 383

57-6 Filed 12/10/14 Page 3 of 3
Aplt. App. # 000379
426 of 446
Document: 01019377512
Page: 384

57-3 Filed 12/10/14 Page 1 of 2
STATE OF KANSAS
COUNTY OF SEDGWICK
) ss:
)
2. As clerks of the court, we perform our duties in accordance with legal
requirements as per K.S.A. 20-3102 and as communicated to us under the
supervision of the Chief Judge, at this point, Chief Judge James R. Fleetwood.
5. On November 13,2014, Judge Fleetwood issued Administrative Order 14-08, a
certified copy of which is attached as Exhibit A hereto. In that Order, Judge
Fleetwood directs the Clerks to issue marriage licenses without consideration of
gender of the applicants.
6. According to records maintained in my office, the Plaintiffs in this case, Kerry
Wilks and Donna DiTrani, applied for a marriage license on October 9,2014.
We did take the application on that date. We keep applications on file for one
year.
7. To date, neither Wilks nor DiTrani have returned to the Clerk's Office to submit
a completed worksheet or to request issuance of a marriage license.
Aplt. App. # 000380
427 of 446
Document: 01019377512
Page: 385

57-3 Filed 12/10/14 Page 2 of 2
8. My Office has no record ofKail Marie or Michelle L. Brown having appeared in

my office to apply for a marriage license.
9. Except for recognized holidays, my Office is open for business, induding but not
limited to accepting applications for marriage licenses and issuing licenses, every
week day from 8 a.m. to 4 p.m.
Bernie Lumbreras
Subscribed and Sworn to before the undersigned this
2014.
=:
NOTARY PUBLIC State of Kansas
TINA L. HARRIS N
My Appt Expires I
0
My Appointment Expires:
-k~~J
1_
/1 /10/..;101-;;
I
~aay of December,
Notary Public
Aplt. App. # 000381
428 of 446
Document: 01019377512
Page: 386
"
14MV 618
18th JUDICIAL DISTRICT
ADMINISTRATIVE ORDER It..{ -t:)
"
.~-fL9.
./\
APP8&~t(ll1 Rm. ff"'"
is
lll' NOY 13 A II: 25
th
Now on this 13 day of November. 2014, the matter comes before

' .
Judge of the 18th Judicial District. concerning the issuance of same sex
nf:rriag~'
niJ
licenses. As Chief Judge it is recognized that a suit naming the clerk of the 18th judicial
district as a party has been brought in the United States District Court for the District of
Kansas challenging the constitutionality ~f Article 15 Section 16 of the Kansas
Constitution that prohibits the issuance of same sex marriage licenses in the State of
Kansas. Said legal action is known as Kail Marie, et aI, v. Robert Moser et al.
In Kail Marie the United States District Court issued an injunction prohibiting the
Clerk of the Court of Douglass and Sedgwick County, Kansas from denying the
marriage applications of same sex couples. Central to the court's ruling was a finding
that the continual denial of said license was a violation of the United States Constitution
because it resulted in discrimination and a violation of the equal protection clause of the
constitution.
Appeal from this order was taken to the 10th Circuit Court of Appeals. A panel of
the 10th Circuit Court of Appeals affirmed the action of the District Court. This issue was
then appealed to the United States Supreme Court. By a vote of seven to two, The
United States Supreme Court refused to grant a further stay of the original order
prohibiting the issuance of same sex marriage licenses in the State of Kansas. The
order of the United States Supreme Court directs the State of Kansas and parties to the
Kail Marie lawsuit to issue marriage licenses to same sex couples.
Aplt. App. # 000382
429 of 446
Document: 01019377512
Page: 387
Therefore the clerk of the court and her staff are hereby ordered and directed to
issue marriage licenses without consideration of gender of the applicants in accordance
with the order of the United States Supreme Court and to otherwise comply with all
other requirements related to issuing said marriage licenses generally.
IT IS SO ORDERED.
1.!
Aplt. App. # 000383
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DITRANI,
Plaintiffs,
)
)
)
v.

)
)
ROBERT MOSER, M.D., in his official capacity

Capacity as Clerk of the District Court for the 7th
BERNIE LUMBRERAS, in her official capacity
Defendants.
)
)
)
)
)
)
)
)
)
)
-------------------------------- )
STATE OF KANSAS
COUNTY OF SEDGWICK
) ss:
)
2. Neither I nor the clerks operating under my supervision discriminate against any
person or operate under any sort of personal belief or animus. We perform our
duties in accordance with legal requirements as per K.S.A. 20-3102 and as
Aplt. App. # 000388
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57-4 Filed 12/10/14 Page 2 of 4
communicated to us under the supervision of the Chief Judge, at this point, Chief
Judge James R. Fleetwood.
5. I do not authorize persons to perform marriage rites; the Clerks have no role in
the function set forth in K.S.A. 2014 Supp. 23-2504.
6. Any determination as to the issuance of a license to Kerry Wilks or Donna
DiTrani was made by Chief Judge James R Fleetwood or Judge Eric Yost acting
in Chief Judge Fleetwood's absence. It was not made by me or by my clerks.
7. My office is also in compliance with the Supreme Court's October 10,2014,
Order in State ex rei. Schmidt v. Moriarty which is consistent with the directions
of Chief Judge Fleetwood.
8. Neither I nor my clerks have any role in deciding whether a person is authorized
to file a joint tax return in Kansas.
9. Neither I nor my clerks have any role in determining whether a person is entitled
to inherit property through intestate succession in Kansas.
Bernie Lumbreras
Subscribed and Sworn to before the undersigned this 0"
9t t, day of October, 2014.

-
C~-ad
No
ubc
My Appointment Expires: :? -/-18
CATHY STEPPPRATT
NOTARY PUBLIC
STATE OF KANSAS
My Appl Exp .
.3 -1-18
Aplt. App. # 000389
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"
14MV 618
18th JUDICIAL DISTRICT
ADMINISTRATIVE ORDER It..{ -t:)
"
.~-fL9.
./\
APP8&~t(ll1 Rm. ff"'"
is
lll' NOY 13 A II: 25
th
Now on this 13 day of November. 2014, the matter comes before

' .
Judge of the 18th Judicial District. concerning the issuance of same sex
nf:rriag~'
niJ
licenses. As Chief Judge it is recognized that a suit naming the clerk of the 18th judicial
district as a party has been brought in the United States District Court for the District of
Kansas challenging the constitutionality ~f Article 15 Section 16 of the Kansas
Constitution that prohibits the issuance of same sex marriage licenses in the State of
Kansas. Said legal action is known as Kail Marie, et aI, v. Robert Moser et al.
In Kail Marie the United States District Court issued an injunction prohibiting the
Clerk of the Court of Douglass and Sedgwick County, Kansas from denying the
marriage applications of same sex couples. Central to the court's ruling was a finding
that the continual denial of said license was a violation of the United States Constitution
because it resulted in discrimination and a violation of the equal protection clause of the
constitution.
Appeal from this order was taken to the 10th Circuit Court of Appeals. A panel of
the 10th Circuit Court of Appeals affirmed the action of the District Court. This issue was
then appealed to the United States Supreme Court. By a vote of seven to two, The
United States Supreme Court refused to grant a further stay of the original order
prohibiting the issuance of same sex marriage licenses in the State of Kansas. The
order of the United States Supreme Court directs the State of Kansas and parties to the
Kail Marie lawsuit to issue marriage licenses to same sex couples.
Aplt. App. # 000390
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Therefore the clerk of the court and her staff are hereby ordered and directed to
issue marriage licenses without consideration of gender of the applicants in accordance
with the order of the United States Supreme Court and to otherwise comply with all
other requirements related to issuing said marriage licenses generally.
IT IS SO ORDERED.
1.!
Aplt. App. # 000391
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Aplt. App. # 000399
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14-3246 Appellants&#39; Opening Brief

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14-3246 Appellants&#39; Opening Brief

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Appellate Case: 14-3246

Date Filed: 01/28/2015

Case No. 14-3246

On Appeal from the United States District Court

JOINT OPENING BRIEF OF APPELLANTS

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CERTIFICATE OF COMPLIANCE ..................................................................33

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PRIOR OR RELATED APPEALS

The Complaint, seeking declaratory and injunctive relief, premised

jurisdiction generally on 42 U.S.C. 1983, seeking preliminary injunctive relief.

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Supplement to Response (Doc. 24), Aplt. App. V. 2, at 261-63); Transcript of

1. Under the rule of District Court of Appeals v. Feldman, did the

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who had made legal determinations that same-sex marriage applicants

District Judge Daniel Crabtree rejected jurisdictional defenses

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Aplt. App. V.1 at 125-260).

Date Filed: 01/28/2015

Defendants exhibits, including the Affidavit of

Defendant Robert Moser, Secretary of the Department of Health and Environment,

(Transcript of October 31, 2014

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Hamilton and Bernie Lumbreras, Exhibits to Defendants Memorandum in Support

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ARGUMENT AND AUTHORITIES

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28 U.S.C. 1292(a)(1) authorizes appellate review of a district court's

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1. UNDER THE RULE OF DISTRICT COURT OF APPEALS V.

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under Kansas law. ((Affidavit of Douglas Hamilton (Doc. 23-7), Affidavit of

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courts conflicting judgments would inject additional uncertainty into the

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14-3246 Appellants' Opening Brief

14-3246 Appellants' Opening Brief