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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

KAIL MARIE and MICHELLE L. BROWN, )and KERRY WILKS, Ph.D., and DONNA )

DITRANI, JAMES E. PETERS and GARY A. )MOHRMAN; CARRIE L. FOWLER and )SARAH C. BRAUN; and DARCI JO )BOHNENBLUST and JOLEEN M. )HICKMAN, )

Plaintiffs, ) Case No. 14-CV-2518-DDCv. )

)SUSAN MOSIER, M.D., in her 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 7 th )Judicial District (Douglas county), and )BERNIE LUMBRERAS, in her official capacity )as Clerk of the District Court for the 18 th )Judicial District (Sedgwick County), )

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 Revenue’s Division )of Vehicles, and MIKE MICHAEL, in his official )capacity as Director of the State Employee )Health Plan, )

Defendants. ) _________________________________________ )

PRETRIAL ORDER

A pretrial conference was conducted in this case on May 7, 2015, by U.S.

Magistrate Judge Teresa J. James. The plaintiffs, Kail Marie, Michelle L. Brown, Kerry

Wilks, Ph.D., Donna DiTrani, James E. Peters, Gary A. Mohrman, Carrie L. Fowler,

Sarah C. Braun, Darci Jo Bohnenblust and Joleen M. Hickman, appeared through

counsel, Stephen D. Bonney and Samantha J. Wenger. The defendants, Susan Mosier,

M.D., in her official capacity as Secretary of the Kansas Department of Health and

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Environment, 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

Revenue’s Division of Vehicles, and Mike Michael, in his official capacity as Director of

the State Employee Health Plan, appeared through counsel, Steve R. Fabert, Assistant

Attorney General, and Douglas A. Hamilton, in his official capacity as Clerk of the

District Court for the 7 th Judicial District (Douglas County, Kansas), and Bernie

Lumbreras, in her official capacity as Clerk of the District Court for the 18 th Judicial

District (Sedgwick County, Kansas), appeared through counsel, M.J. Willoughby,

Assistant Attorney General.

This pretrial order supersedes all pleadings and controls the subsequent course of

this case. It will not be modified except by consent of the parties and the court’s

approval, or by order of the court to prevent manifest injustice. Fed. R. Civ. P. 16(d) &

(e); D. Kan. Rule 16.2(b).

1. PRELIMINARY MATTERS.

a. Subject Matter Jurisdiction. Subject matter jurisdiction is invoked under

28 U.S.C. §§ 1331, 1342(a) and 42 U.S.C. § 1983 and is disputed. Defendants have

timely filed motions to dismiss the Amended Complaint for lack of subject matter

jurisdiction (Docs. 57, 58, 60, 79); to date, those motions have been briefed but not ruled

upon by the Court.

b. Personal Jurisdiction. The court’s personal jurisdiction over the parties isnot disputed.

c. Venue. Venue in this court is not disputed.


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d. Governing Law. Subject to the court’s determination of the law that

applies to the case, the parties believe and agree that the substantive issues in this case are

governed by the following law: Plaintiffs assert their claims under 42 U.S.C. § 1983;

federal law regarding such claims applies. Defendants contend that because Plaintiffs’

claims involve the traditional state matter of domestic relations and tax policy, state law

and public policy controls as to which marriages are given legal effect in Kansas (as also

provided in DOMA, 28 U.S.C. § 1738C), and the rights and obligations afforded to

married persons within the State. Defendants contend that tax policy and administration

is a matter for state law and state policy. Defendants contend that while state law controls

the interpretation and application of the laws challenged by plaintiffs, federal law

controls the existence, nature, and application of the alleged constitutional right(s)

asserted by plaintiffs.

2. STIPULATIONS.

a. The following facts are stipulated by reason of the F.R.C.P. 56 summary

judgment response and reply briefs:

Plaintiffs’ Statement of Facts:

4. Susan Mosier, M.D., is the current Secretary of KDHE.

5. On October 10, 2014, when Plaintiffs filed their original Complaint in this case,Defendant Robert Moser, M.D., was the Secretary of the Kansas Department of Health andEnvironment (“KDHE”).

6. The official duties of the Secretary of KDHE include directing and supervisingKansas’s system of vital records.

7. With respect to marriage licenses issued in the State of Kansas, the Secretary ofKDHE must: (a) supervise the registration of all marriage records issued in the State of Kansas,


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Kan. Stat. Ann. § 23-2507; (b) furnish forms used throughout the State of Kansas for the mar-riage license process, Kan. Stat. Ann. § 23-2509; and (c) maintain a publicly available vitalrecords index of marriages and issue certified copies of marriage licenses upon request, Kan.Stat. Ann. § 23-2512 (providing that such certified copies constitute prima facie evidence of themarriages in “all courts and for all purposes”).

8. 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.

9. Defendant Bernie Lumbreras is the Clerk of the District Court for the 18thJudicial District, also known as the Sedgwick County District Court, which sits in Wichita,Kansas.

13. On October 8, 2014, Plaintiff Kail Marie appeared in person at the office of theClerk of the District Court of Douglas County, Kansas, requested and was given a marriagelicense application which was returned to the deputy clerk who then gave Plaintiff Marie a

marriage license worksheet along with the instruction to return no sooner than Tuesday, October14, 2014 absent waiver of the three-day statutory waiting period, or words to that effect.

15. On October 16, 2014, Plaintiffs Marie and Brown returned to the office of theClerk of the Douglas County District Court, were told that their application for a marriage licensewas denied, and were given a copy of Administrative Order 14-13.

18. On November 5, 2014, Defendants Moser, Hamilton and Lumbreras filed a Notice of Appeal, Doc. 30, and on November 6, 2014, Defendants filed with the Tenth Circuitan Emergency Motion for Stay of Preliminary Injunction. In an order filed on November 7,2014, a two judge panel of the Tenth Circuit denied Defendants’ Emergency Motion for Stay.

19. On November 10, 2014, Defendants filed with the United States Supreme Courtan Emergency Application to Stay Preliminary Injunction Pending Appeal. On November 12,2014, the Supreme Court denied the Emergency Application after which the District Court’s

preliminary injunction took effect.

22. James E. Peters and Gary A. Mohrman have been together in a committed, lovingsame-sex relationship for nearly thirty-five years, and they reside in Lawrence, Kansas. Theirmarriage was solemnized on July 31, 2010, in Dubuque, Iowa.

23. Carrie L. Fowler and Sarah C. Braun have been together in a committed, loving

same-sex relationship for more than two years, and they reside in McClouth, Kansas. Theirmarriage was solemnized on June 7, 2014 in Chicago, Illinois.

24. Darci Jo Bohnenblust and Joleen M. Hickman have been together in a committed,loving same-sex relationship for more than nineteen years, and they reside in the City of Riley,Kansas. Their marriage was solemnized on November 13, 2014, in Riley County, Kansas.

25. Defendant Nick Jordan is the Secretary of the Kansas Department of Revenue


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compel three named Kansas officials to issue marriage licenses to them. On November 26,2014 a First Amended Complaint (Document 52) was filed naming six additional plaintiffs andthree additional defendants.

2. All of the newly named plaintiffs allege that they are married persons.

Plaintiffs Peters and Mohrman allege that they were married in the state of Iowa in 2010.Plaintiffs Fowler and Braun allege that they were married in the state of Illinois in 2014.Plaintiffs Bohnenblust and Hickman allege that they were married in Kansas during Novemberof 2014.

3. All of the claims asserted by the six new plaintiffs relate to one or another ofthe newly added defendants, and they make no claims against the original three defendants.

4. Plaintiffs Peters and Mohrman complain that Peters’ employer, the Universityof Kansas, refused to add Mohrman to Peters’ state employee health insurance becauseMohrman does not meet the definition of a “spouse” under the eligibility rules governing the

health care plan.5. Plaintiffs Fowler and Braun complain that in November of 2014 Fowler was

unable to obtain a Kansas drivers’ license using the surname Braun because their Illinoismarriage is not recognized under Kansas law. Fowler and Braun state no other complaint.

6. Plaintiffs Bohnenblust and Hickman complain that the Division of Vehicleswould not issue a new drivers’ license to each of them, restoring the surnames they had used

before entering into earlier marriages. The Amended Complaint does not state whether the prior marriages were entered into in Kansas or some other state, nor does it state where thelegal proceedings occurred to dissolve the earlier marriages. Plaintiffs Bohnenblust andHickman also complain that Bohnenblust’s employer, Kansas State University, refused to addHickman as a spouse on Bohnenblust’s health insurance due to the limitation of spousalcoverage to opposite-sex spouses.

7. In this lawsuit plaintiffs are not challenging the constitutionality of the federallaw that allows a state to give no effect to another state’s recognition of a same-sex marriage,28 U.S.C. § 1738C (1996).

8. The marriage laws of Kansas have never permitted any person to marry any other person without restriction.

13. Plaintiffs Wilks and DiTrani participated in a “civil commitment ceremony” inWichita in June of 2012. Friends, family, and acquaintances were invited to attend theceremony.

15. Plaintiffs Peters and Mohrman have resided together in Kansas since 2005. In2010 they decided to travel to Iowa to enter into a marriage that would be lawful in thatstate. They did not immediately demand that Kansas state agencies recognize their Iowamarriage.


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functions as are prescribed by law, prescribed by rules of the supreme court or assigned by thechief judge.” K.S.A. 20-343 (2014 Supp.).

31. The clerks of the district court “shall do and perform all duties that may berequired of them by law or the rules and practice of the courts. . . .” K.S.A. 20-3102.

32. Clerks are expressly prohibited from giving legal advice. K.S.A. 20-3133.

33. Kansas is a unified court system. K.S.A. 20-101, Kan. Const. Art. 3, § 1 (“[t]hesupreme court shall have general administrative authority over all courts in this state.”);K.S.A. 20-318 (2014 Supp.); K.S.A. 20-319 (2014 Supp.).

34. In Kansas, the district courts are organized into 31 judicial districts. Kan. Const.,Art. 3, §6; K.S.A. 4-202, et seq.

35. Chief Judges are subject to supervision by the Kansas Supreme Court. K.S.A.

20-329 (2014 Supp.); Kansas Supreme Court Rule 107(a).36. 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. 20-343 (2014 Supp.); K.S.A. 20-345 (2014 Supp.); Kansas Supreme Court Rule107(b)(2).

37. The Kansas Constitution provides for three separate branches of stategovernment. Kan. Const., Arts. 1, 2, 3.

38. Under Kansas law, only one party need appear to apply for a marriage license.K.S.A. 23- 2505(a) (2014 Supp.).

39. In Kansas, marriage licenses may be issued by judges or clerks. See, e.g.,K.S.A. 23- 2505(a) (2014 Supp.).

42. For example, for underage applicants, a judge may, after due investigation, giveconsent and authorize a marriage. Clerks do not have that authority. K.S.A. 23-2505(c)(2014 Supp.).

43. The statutes do not require an applicant to produce a birth certificate as partof the marriage license process. K.S.A. 23-2505 (2014 Supp.).

44. An oath is administered to the marriage license applicant and the judge orclerk are authorized to administer oaths for that purpose. K.S.A. 23-2505(d) (2014 Supp.).

45. A person swearing falsely in the affidavit for marriage license is subject to amisdemeanor criminal penalty and a fine not exceeding $500. K.S.A. 23-2505(e) (2014 Supp.).

46. A district court clerk does not authorize persons to perform marriage rites; clerks


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play no role in the function set forth in K.S.A. 23-2504 (2014 Supp.).

47. A district court clerk is not the official records custodian for marriage licenserecords in Kansas. K.S.A. 23-2512 (2014 Supp.).

48. A district court clerk has no role in determining the validity of marriage inKansas, including such matters as intestate succession.

49. K.S.A. 23-2510 (2014 Supp.) imposes a license fee imposed on each marriageapplicant of $59 which is remitted to the state treasurer to be deposited to several differentstate funds, including the protection from abuse fund, the family and children trust account ofthe family and children investment fund, the crime victims assistance fund, the nonjudicialsalary adjustment fund and the state general fund.

50. On October 6, 2014, Kerry Wilks and Donna DiTrani went to the SedgwickCounty Courthouse to apply for a marriage license.

51. Wilks spoke to an African American person at the desk.

52. Wilks asked to speak to the African American woman’s supervisor, then tosomeone in charge.

53. Neither Wilks nor DiTrani identified Bernie Lumbreras as someone they hadspoken to regarding their application.

55. Judge Fleetwood informed Wilks and DiTrani that he was unable to authorize theissuance of a marriage license.

56. Wilks and DiTrani met with Judge Fleetwood at the courthouse in hiswaiting room.

57. Wilks and DiTrani knew he was a judge of the district court.

58. On or about October 7, 2014, the Office of Judicial Administration issued amemorandum advising the 31 Chief Judges of the recommendation that applicants for same-sex marriage licenses should be referred to the chief judge for determination.

59. On October 7, 2014, Sandy McCurdy, Clerk of the District Court for the 10 th

Judicial District, received an application from a same-sex couple to obtain a marriagelicense pursuant to K.S.A. 23-2505(a).

60. Clerk McCurdy referred the application to Tenth Judicial District Chief JudgeKevin P. Moriarty.

61. On October 8, 2014, Chief Judge Kevin P. Moriarty issued AmendedAdministrative Order No. 14-11, directing the Clerk of the District Court to issue marriage


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licenses to same-sex couples provided they were otherwise qualified to marry under Kansaslaw.

62. On or about October 8, 2014, the Clerk of the District Court of the 7 th JudicialDistrict referred the Marriage License Application of Thomas Tuozzo and Robert Hedlund to

the Chief Judge for review of whether the same-sex applicants were legally entitled to amarriage license under Kansas law.

63. On October 8, 2014, Chief Judge Fairchild issued Administrative Order 14-13analyzing existing Kansas law regarding same-sex marriage licenses and in the last

paragraph providing: “[t]he Clerk of the District Court shall not issue a marriage license tothese applicants or to any other applicants of the same sex. When the Clerk rejects theapplication, the clerk shall give the applicants a copy of this order.”

64. Michelle Brown attended and graduated from Washburn Law School.

65. Brown works as a prosecutor in Geary County.

66. Before the application was denied, Michelle Brown was aware as of WednesdayOctober 8 or Thursday October 9, 2014 that the Douglas county clerk’s office would notaccept a same sex marriage application. Brown read the administrative order issued byChief Judge Fairchild. Brown assumed that the clerk’s office staff would obey theChief Judge’s Order.

67. On Thursday, October 9, 2014, Wilks and DiTrani returned to the SedgwickCounty Courthouse and were given an application for a marriage license, which theyreturned to the person at the desk. They were asked to wait.

68. Wilks and DiTrani were asked to come back up and a prepared sheet was readthat they would not issue a license at that time. Wilks recorded this on a video recording.

69. The October 9 determination regarding Wilks’ and DiTrani’s application andthe statement was issued by Judge Eric Yost acting in Chief Judge Fleetwood’s absence.

70. Wilks and DiTrani never returned to the Clerk’s Office to submit a completedworksheet or to request issuance of a marriage license.

71. Pursuant to Chief Judge Moriarty’s Order in Johnson County, Clerk McCurdy

issued a marriage license to same-sex applicants on October 10, 2014.72. On October 10, 2014, in the Kansas Supreme Court, the Kansas Attorney

General’s Office filed a petition for issuance of writ of mandamus and request for immediaterelief against respondents Chief Judge Moriarty and Sandy McCurdy on behalf of the State ofKansas. The action as assigned case no. 112,590. The filings in State ex. rel. Schmidt v.

Moriarty are subject to judicial notice as per Fed. R. Evid. 201(b). A copy of theSupreme Court’s November 18, 2014 decision is in the record as Doc. 59-6.


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87. Health insurance for state employees and certain of their dependents isregulated by statute and administrative regulations. K.S.A. 2014 Supp. 75-6501(c) gives to theKansas State Employees Health Care Commission the authority to define what persons may ormay not qualify for insurance benefits under the plan. Eligibility rules are not made by theDirector of the Kansas State Employee Health Benefits Plan.

88. Participation in the state’s health care benefits program is voluntary. Employeesdecide whether to seek to add a dependent to an employee’s health insurance coverage. Anemployee’s dependents have no right to apply for coverage themselves.

89. The current categories of dependent persons who are potentially eligible forcoverage if an employee chooses to apply for that coverage are set forth in K.A.R. 108-1-1.This regulation was amended effective January 2, 2015. The regulation requires that the statusof dependent spouse be determined under Kansas law, not the law of any other state. Theregulation has no language expressly determining whether a spouse can or cannot be a personof the same sex as the employee requesting to add the dependent spouse.

90. Defendant Michael has not participated in any communications with plaintiffsPeters, Mohrman, Bohnenblust, and Hickman concerning their alleged attempts to obtaindependent spouse coverage. Neither Defendant Michael nor anyone employed in hisagency has authority to decide constitutional challenges to Kansas laws or administrativeregulations. Any state employee who wishes to challenge the constitutionality of a statute orregulation would need to obtain a judgment from a court of competent jurisdiction.

91. For taxpayers who use the filing status on their federal personal income taxreturns of “married filing separately,” there is no additional preparatory work needed to fill outtheir state personal income tax returns using “single” filing status other than transferring theinformation from the federal forms to the state forms.

92. Kansas imposes the same personal income tax rates on residents who file assingle unmarried persons or as married residents filing separately.

93. Kansas' Form K-40 personal income tax return is a "self-assessment" taxdocument. Once the return is filed, and assuming that the same is not adjusted or audited bythe Department, the amount of tax shown on the return becomes the assessment of the filer'sKansas personal income tax.

94. For same-sex taxpayers submitting a federal return as married filingseparately, their income would already be separated on the federal income tax return, andthose numbers could be used to submit the Kansas return.

95. No Notice 13-18 worksheet is needed for couples filing federal returns under thestatus married filing separately as their income is already separated.


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b. The parties have stipulated to the admissibility of the following exhibits for

purposes of summary judgment and trial: NA

3. FACTUAL CONTENTIONS.

a. Contentions of Plaintiffs.

i. Kansas law prohibits the issuance of marriage licenses to couples of the same sex andfurther prohibits the recognition of same-sex marriages solemnized in Kansas orelsewhere. K AN. CONST ., art. 15, § 16; Kan. Stat. Ann. § 23-2501; Kan. Stat. Ann. §23-2508.

ii. Plaintiffs Kail Marie and Michelle Brown and Plaintiffs Kerry Wilks and DonnaDiTrani (hereafter “Marriage License Plaintiffs”) are same-sex couples who wish tomarry in Kansas.

iii. The Marriage License Plaintiffs applied for marriage licenses in Douglas andSedgwick Counties in October 2014, but personnel in the district court clerk’s officesin those counties denied those applications for marriage licenses based on K AN. CONST ., art. 15, § 16, Kan. Stat. Ann. § 23-2501, and Kan. Stat. Ann. § 23-2508.Refusing to permit the Marriage License Plaintiffs to marry in Kansas pursuant tothose laws violates the Plaintiffs’ rights to due process and equal protection.

iv. Plaintiffs James Peters and Gary Mohrman were married in Iowa in 2010.

v. Plaintiffs Peters and Mohrman file their federal income tax returns as “married filingseparately.” Plaintiffs Peters and Mohrman would like to file their Kansas income taxreturns as “married.” Based on the Kansas laws banning the recognition of same-sexmarriages, however, the Kansas Department of Revenue (“KDOR”) prohibits same-sex married couples, including Plaintiffs Peters and Mohrman, from filing their stateincome tax returns as “married” and requires them to file as “single” even thoughthey are married. Refusing to recognize the Plaintiffs’ marriage in Kansas based onthe laws prohibiting recognition of same-sex marriages violates the Plaintiffs’ rightsto due process and equal protection.

vi. Plaintiff Peters is an employee of the University of Kansas and is thus eligible forhealth insurance benefits under the State Employee Health Plan (“SEHP”). TheSEHP allows different-sex married couples to add their lawful spouses as dependentscovered by the SEHP. Plaintiff Peters has applied to add his lawful husband, PlaintiffMohrman, as his spouse for purposes of health insurance coverage under the SEHP.Based on the Kansas laws banning the recognition of same-sex marriages, however,the SEHP prohibits Plaintiff Peters from adding Plaintiff Mohrman as his spouse forhealth care dependent benefits. Refusing to recognize the Plaintiffs’ marriage in


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Kansas based on the laws prohibiting recognition of same-sex marriages violates thePlaintiffs’ rights to due process and equal protection.

vii. Plaintiff Carrie Fowler married Plaintiff Sarah Braun in Illinois in 2014. When theymarried, Plaintiff Fowler took Plaintiff Braun’s last name as her last name. Plaintiff

Carrie Fowler has successfully changed her last name from Fowler to Braun on herrecords with the Social Security Administration. In June 2014, Plaintiff Fowlerapplied to the KDOR’s Division of Vehicles to change her last name from Fowler toBraun on her Kansas driver’s license, but – based on the Kansas laws banning therecognition of same-sex marriages – the KDOR’s Division of Vehicles refused tochange Plaintiff Fowler’s last name on her Kansas driver’s license. Refusing torecognize the Plaintiffs’ marriage in Kansas based on the laws prohibiting recognitionof same-sex marriages violates the Plaintiffs’ rights to due process and equal

protection.

viii. Plaintiffs Darci Bohnenblust and Joleen Hickman were married in Riley County,Kansas, on November 13, 2014.

ix. Plaintiff Bohnenblust is an employee of Kansas State University and is thus eligiblefor health insurance benefits under SEHP. The SEHP allows different-sex marriedcouples to add their lawful spouses as dependents covered by the SEHP. PlaintiffBohnenblust has applied to add her lawful wife, Plaintiff Hickman, as her spouse for

purposes of health insurance coverage under the SEHP. Based on the Kansas laws banning the recognition of same-sex marriages, however, the SEHP prohibits PlaintiffBohnenblust from adding Plaintiff Hickman as her spouse for health care dependent

benefits. Refusing to recognize the Plaintiffs’ marriage in Kansas based on the laws prohibiting recognition of same-sex marriages violates the Plaintiffs’ rights to due

process and equal protection.

x. Kansas law provides that “At the time of marriage, a person may designate a newlegal name, by which such person shall subsequently be known.” Kan. Stat. Ann. §23-2506(a). At the time of their marriage, Plaintiff Bohnenblust designated Pottroffas her new last name, and Plaintiff Hickman designated Spain as her new last name.Those names were duly reflected on their marriage license, which was endorsed bythe person who performed their marriage on November 13, 2014. PlaintiffsBohnenblust and Hickman have successfully changed their last names on theirrecords with the Social Security Administration. In November 2014, PlaintiffsBohnenblust and Hickman applied to the KDOR’s Division of Vehicles to changetheir last names on their Kansas driver’s licenses, but – based on the Kansas laws

banning the recognition of same-sex marriages – the KDOR’s Division of Vehiclesrefused to change Plaintiff Bohnenblust’s last name to Pottroff on her Kansas driver’slicense and refused to change Plaintiff Hickman’s last name to Spain on her Kansasdriver’s license. Refusing to recognize the Plaintiffs’ marriage in Kansas based onthe laws prohibiting recognition of same-sex marriages violates the Plaintiffs’ rightsto due process and equal protection.


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b. Contentions of Defendants.

i. None of the defendants is presently engaged in any practice that violates a federalright of any of the plaintiffs. Without an ongoing violation of some plaintiff’s federalrights by each defendant the Court lacks subject matter jurisdiction under the

Eleventh Amendment to the United States Constitution.

ii. Defendant Susan Mosier, M.D. has not interfered with the issuance of a marriagelicense to any plaintiff. There is no factual basis for a claim against her in thislawsuit. She is not a defendant with regard to any claim of non-recognition of maritalstatus. Same-sex marriages performed in Kansas are treated exactly the same asopposite-sex marriages, for purposes of record-keeping at KDHE.

iii. Defendants Clerks Douglas A. Hamilton and Bernie Lumbreras are not proper partiesand this Court lacks jurisdiction over them for reasons stated in opposition to themotion for preliminary injunction and in the motion to dismiss the Amended

Complaint. Clerk Hamilton and Clerk Lumbreras did not make the decisionscomplained of by Marie, Brown, Wilks and DiTrani – rather, it is uncontested that thedecisions not to issue marriage licenses to the original four plaintiffs were made by

judges of the district court, namely Chief Judge Robert Fairchild and Chief JudgeJames Fleetwood, acting in their judicial capacities and making judicial decisions onwhether Kansas law authorized the issuance of same-sex marriage licenses, a judicialfunction for which immunity is provided under 42 U.S.C. § 1983, as well as judicialimmunity in general. Since the issuance of the preliminary injunction, it isundisputed that Hamiltons’ and Lumbreras’ Offices have been issuing same-sexmarriage licenses; Plaintiffs Marie, Wilks, Brown and DiTrani have not returned torequest issuance of a license from these clerks and have stated they have no intention

of doing so until this litigation, including all appeals, is completed. Plaintiffs havetestified that they no longer have a present interest in obtaining marriage licenses, butrather are seeking other legal benefits of marriage, including recognition of theirstatus by private parties such as insurance providers, hospitals, and others and othersocial and legal benefits, benefits which the Clerks cannot give them. The Clerkshave absolutely no role in “marriage recognition” and are not a proper party as tosuch claims. The Clerks are not proper or necessary defendants in this case.

iv. Defendant Jordan is not a proper party, and the Court lacks subject matter jurisdictionover any grievance related to the Kansas Department of Revenue. The Tax InjunctionAct, 28 U.S.C. § 1341, bars the relief requested against defendant Jordan, which is

also barred by principles of comity. None of the plaintiffs is being unlawfullydiscriminated against by KDOR.

v. Defendant Kaspar is not a proper party, and her division of KDOR is not engaged inany form of unlawful discrimination against any plaintiff. The laws of Kansas requirean applicant to present a Kansas marriage license that shows a new name rather than aname previously used by the applicant before KDOR issues a driving license in that


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new name. No plaintiff has presented to KDOR the paperwork that would entitle herto issuance of a license in a new name under the statute.

vi. No federal claim is stated against defendant Michael, and the relief requested againsthim is beyond the Court’s jurisdiction under the Eleventh Amendment. Employee

health insurance for state employees is not governed by any federal law. All policiesadministered by defendant Michael are consistent with the federal constitution andrelevant federal statutes. The relief sought by plaintiffs would violate the EleventhAmendment because it would require payment of state funds for health benefits.

4. LEGAL CLAIMS AND DEFENSES.

a. Legal Claims of Plaintiffs.

All Plaintiffs assert that they are entitled to relief upon the following theory: The Kansaslaws prohibiting the issuance of marriage licenses to same-sex couples and prohibiting therecognition of same-sex marriages solemnized in Kansas or elsewhere violate the rights ofPlaintiffs to due process and equal protection as guaranteed by the Due Process and EqualProtection Clauses of the Fourteenth Amendment to the United States Constitution.Plaintiffs challenge the constitutionality of those Kansas laws both on their face and asapplied.

b. Defenses of Defendants.

i. FAILURE TO STATE A CLAIM ON WHICH RELIEF MAY BE GRANTED: Defendants object to the misstatement of the claims of plaintiff insofar as they deviatematerially from the allegations of the first amended complaint, which sets forthdifferent claims for some of the plaintiffs than are made by the other plaintiffs.Defendants also object to the lack of specificity in plaintiffs’ claims, which do notidentify with particularity the constitutional provisions, statutes, regulations, or otherrules of law that they seek to have declared facially unconstitutional. In addition tofailing to comply with the requirements of Fed. R. Civ. P. 8(a) and 65(d), by failing toidentify the statutes, regulations, or other rules of law that they seek to have declaredfacially unconstitutional plaintiffs would deprive defendants of due process of law by

preventing them from defending the constitutionality of each challenged provision oflaw.

ii. NO CONSTITUTIONAL RIGHT TO MARRY BASED SOLELY ONPERSONAL CHOICE: Defendants deny that plaintiffs have a constitutional right tomarry a particular person of unfettered choice because any such right wouldinvalidate every form of legal restriction on marriage, including prohibitions against

polygamy, incestuous marriage, and underage marriage, and would create aconstitutional right for any and every legal person to marry any and every legal

person without restriction, in effect destroying the legal institution of marriage as ithas been practiced since before the adoption of the United States Constitution. A


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successful facial challenge to Kansas’ marriage laws would invalidate every suchrestriction, not just the application of the law to monogamous same-sex marriages

between unrelated adult natural persons.

iii. LACK OF SUBJECT MATTER JURISDICTION: Defendants contend that this

Court lacks subject matter jurisdiction over the claims in this lawsuit for multiplereasons including 1) that there is no case or controversy between the plaintiffs and thedefendants; 2) that the requests for retroactive relief against the clerks is barred byEleventh Amendment and judicial immunity; and 3) that Plaintiffs’ allegations in theAmended Complaint which seek permanent injunctions against “any … sources ofstate law that exclude same-sex couples from marriage and that prohibit therecognition of same-sex marriages performed in Kansas and elsewhere,” fail to asserta basis for federal jurisdiction and fail to state a federal cause of action for whichrelief may be granted.

iv. NO FEDERAL CAUSE OF ACTION FOR THE RELIEF REQUESTED:

Plaintiffs’ Amended Complaint fails to present a factual and legal basis for the reliefrequested. Not every grievance concerning the alleged deprivation of an allegedfederal right gives right to a federal cause of action. Without a Congressionally-granted right to a private remedy, these plaintiffs have no right to litigate theirchallenges in federal court. The Tax Injunction Act, 28 U.S.C. § 1341, bars the reliefrequested against defendant Jordan, which is also barred by principles of comity.

v. NONCOMPLIANCE WITH F.R.C.P. 5.1: Any challenge to “non-recognition” ofmarriages entered into in other states is beyond the Court’s subject matter jurisdiction

by reason of plaintiffs’ failure to notify the United States Attorney General of theirchallenge to the constitutionality of the federal Defense of Marriage Act, whichexpressly authorizes the state laws that plaintiffs seek to nullify. Kansas laws refusingto give legal effect to out-of-state same-sex marriage are expressly permitted byfederal law, 28 U.S.C. §1738C. Because plaintiffs contend that any application of 28U.S.C. §1738C that would legalize Kansas’ marriage laws would violate theirconstitutional rights and the plain intent of 28 U.S.C. §1738C is to ratify states’nonrecognition of same-sex marriages entered into in other states, theconstitutionality of 28 U.S.C. §1738C has been placed in issue. Plaintiffs have noteven attempted to comply with the preconditions for challenging the constitutionalityof 28 U.S.C. §1738C here.

vi. NO PRESENT CASE OR CONTROVERSY AGAINST THE NAMEDDEFENDANTS: The unmarried plaintiffs are free to obtain marriage licenses fromthe defendant court clerks at any time pursuant to the controlling orders issued by thechief judges in their respective districts and an order of the Kansas Supreme Court.Those orders will not change unless and until the United States Supreme Courtdecides against the issues raised by plaintiffs. Because the unmarried plaintiffs plan toremain unmarried for the foreseeable future, there is no case or controversy stated bythem and they lack standing to sue. None of the plaintiffs is being unlawfully


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discriminated against by KDHE or KDOR. No federal law is being violated byKSEHP.

vii. NO LEGAL STANDING TO SUE: None of the plaintiffs can show significant legalinjury of the sort that would justify the issuance of a permanent injunction. The

voluntarily unmarried plaintiffs are not injured by any act of the defendants, and anyclaimed injury results exclusively from their own decision to remain single. Themarried plaintiffs have demonstrated no injury to a right protected by federal law.

viii. NO UNEQUAL TREATMENT BY DEFENDANTS: Plaintiffs Peters andMohrman do not alleged that they are treated any differently than heterosexualmarried couples under the Kansas tax guidance document complained of – rather,they complain that state income tax law is not the same as federal income tax law,which fails to state an equal protection claim. Similarly, Plaintiffs Fowler and Brauncomplain that defendants Jordan and Kaspar refuse to let them rely on Illinoismarriage papers to accomplish a name change on a driver’s license but there is no

allegation that a heterosexual married in Illinois would be treated differently underKansas law – this is not an equal protection issue. Plaintiffs Bohnenblust andHickman allege that they were not allowed to restore their premarital surnamesappearing on their birth certificates by presenting a marriage license; however, theydo not allege that a heterosexual couple would have been permitted to achieve namerestoration in this manner.

ix. NO JUSTICIABLE GRIEVANCE RELATED TO HEALTH INSURANCE: Although four Plaintiffs claim that their right to participate in the Kansas StateEmployee Health Plan was unlawfully denied or impaired in November of 2014, allfour have testified that the change sought would not financially benefit them andidentify no federal law which would require the coverage they seek. Arguments ofdisparate treatment of similarly situated insurance applicants, even if made, do notgive rise to an equal protection violation. Moreover, any order the Court might issueto the State to use taxpayer monies to pay these plaintiffs’ medical expenses is barred

by Eleventh Amendment immunity.

x. NO SEVERABILITY OF COMPLAINTS AGAINST KANSASCONSTITUTION: The relief requested by plaintiffs is not available because theyseek to suppress only part of the Kansas constitutional and statutory definitions ofmarriage as a relationship between one man and one woman. There is no factual orlegal basis for artificially severing out the special interest of adult monogamoushomosexual persons for distinct and separate treatment under the Constitution. Ifthese provisions are facially unconstitutional then the prohibition on polygamous,incestuous, and underage marriages must fail along with the prohibition on same-sexmarriages.

xi. FAILURE TO JOIN NECESSARY PARTIES UNDER F.R.C.P. 19: Plaintiffshave failed to notify and/or join all proper, necessary and indispensable parties to therelief being requested, including but not limited to the United States Attorney General


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as to DOMA’s constitutionality, and the Chief Judges of the Judicial Districts inquestion, and the private persons who fail to treat plaintiffs with the dignity Plaintiffsdemand as a constitutional right.

xii. RESERVATION OF RIGHT TO FILE ANSWERS: Defendants Jordan, Kaspar,

and Michael have not yet filed answers and will not be obligated to file answers untiltheir pending motions to dismiss have been ruled upon. These defendants thereforereserve the right to raise additional defenses as soon as the Court decides the motionsto dismiss.

5. DAMAGES AND NON-MONETARY RELIEF REQUESTED.

Pursuant to 28 U.S.C. § 2201, Plaintiffs seek a declaratory judgment that the challengedKansas laws are unconstitutional in violation of the Due Process and Equal Protection Clauses ofthe Fourteenth Amendment to the United States Constitution. Pursuant to 42 U.S.C. § 1983,Plaintiffs also seek the following permanent injunction:

(1) enjoining Defendants Susan Mosier, Douglas Hamilton, Bernie Lumbreras, Nick Jordan,Lisa Kaspar, and Mike Michael, in their official capacities – as well as all officers, agents,servants, employees, attorneys, and other persons who are in active concert or participation withthem – from enforcing article 15, section 16 of the Kansas Constitution, Kansas StatutesAnnotated §§ 23-2501 and 23-2508, and any other sources of state law that permit or requireDefendants to refuse recognition of the marriages of same-sex couples whether performed inKansas or elsewhere, and

(2) requiring Defendants Susan Mosier, Douglas Hamilton, Bernie Lumbreras, Nick Jordan,Lisa Kaspar, and Mike Michael, in their official capacities – as well as all officers, agents,

servants, employees, attorneys, and other persons who are in active concert or participation withthem – to treat same-sex married people the same as any other married persons, including but notlimited to:

(a) requiring Defendant Mosier in her official capacity – and all officers, agents, servants,employees, attorneys, and other persons who are in active concert or participation withher – to process marriage licenses issued to same-sex couples pursuant to the samerestrictions and limitations applicable to different-sex couples’ freedom to marry and torecognize marriages validly entered into by same-sex couples including Plaintiffs.

(b) requiring Defendants Hamilton and Lumbreras in their official capacities – and all

officers, agents, servants, employees, attorneys, and other persons who are in activeconcert or participation with them – to permit issuance of marriage licenses to same-sexcouples, pursuant to the same restrictions and limitations applicable to different-sexcouples’ freedom to marry, and to recognize marriages validly entered into by same-sexcouples including Plaintiffs.

(c) requiring Defendant Jordan, in his official capacity – and all officers, agents, servants,employees, attorneys, and other persons who are in active concert or participation with


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him – to recognize marriages validly entered into in Kansas and elsewhere by same-sexcouples including Plaintiffs for purposes of filing individual state income tax returns in a“married” status;

(d) requiring Defendants Jordan and Kasper in their official capacities – and all officers,

agents, servants, employees, attorneys, and other persons who are in active concert or participation with them – to recognize marriages validly entered into in Kansas andelsewhere by same-sex couples including Plaintiffs for purposes of issuing new drivers’licenses to married same-sex spouses who change their names as part of the marriagelicensure process; and

(e) requiring Defendant Michael in his official capacity – and all officers, agents, servants,employees, attorneys, and other persons who are in active concert or participation withhim – to recognize marriages validly entered into in Kansas and elsewhere by same-sexcouples including Plaintiffs for purposes of allowing employees covered by the KansasState Employees Health Plan (“SEHP”) to add their same-sex spouses as dependents

covered by the SEHP.Finally, Plaintiffs claim an entitlement to attorneys’ fees under 42 U.S.C. § 1988.

6. AMENDMENTS TO PLEADINGS.

None.

7. DISCOVERY.

Under the scheduling order (Doc. 91), discovery was to have been completed by

April 22, 2015. Discovery is complete.

Unopposed discovery may continue after the deadline for completion of discovery

so long as it does not delay the briefing of or ruling on dispositive motions or other

pretrial preparations. Although discovery may be conducted beyond the deadline for

completion of discovery if all parties are in agreement to do so, under these

circumstances the court will not be available to resolve any disputes that arise during the

course of such extended discovery.


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8. MOTIONS.

a. Pending Motions.

i. Motion to Dismiss Amended Complaint by Defendant Robert D. Moser (Doc.

57), filed December 10, 2014, amended by Doc. 60 filed December 11, 2014.

ii. Motion to Dismiss Amended Complaint by Defendants Douglas A. Hamilton

and Bernie Lumbreras (Doc. 59), filed December 10, 2014.

iii. Motion to Dismiss for Failure to State a Claim and/or Lack of Subject Matter

Jurisdiction by Defendants KDOR, KDOR Division of Vehicles and Kansas

State Employee Health Plan (Doc. 79), filed January 20, 2015.

iv. Motion for Summary Judgment by Plaintiffs Bohnenblust, Braun, Brown,

DiTrani, Fowler, Hickman, Marie, Mohrman, Peters, Wilks (Doc. 86), filed

February 13, 2015.

b. Additional Pretrial Motions.

After the pretrial conference, the parties intend to file the following motions:

Defendants may file a dispositive motion following Supreme Court action in

Obergefell v. Hodges, et al., 14-556.

The dispositive-motion deadline, as established in the scheduling order and any

amendments, was February 28, 2015, subject to potential extension following U.S.

Supreme Court action, which may require a supplemental deadline.

The parties should follow the summary-judgment guidelines available on the

court’s website:

http://www.ksd.uscourts.gov/summary-judgment/


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Consistent with the scheduling order filed earlier in this case, the arguments

and authorities section of briefs or memoranda must not exceed 30 pages, absent an order

of the court.

c. Motions Regarding Expert Testimony. Not applicable, i.e., the parties

have stipulated that no expert testimony will be used in this case.

9. TRIAL.

The trial docket setting, as established in the scheduling order and any

amendments, is November 3, 2015, at 9:00 a.m., in Kansas City , Kansas. This case

will be tried by the court sitting without a jury. Estimated time of trial is expected to be

one day. The court will attempt to decide any timely filed dispositive motions

approximately 60 days before trial. If no dispositive motions are timely filed, or if the

case remains at issue after timely dispositive motions have been decided, then the trial

judge will convene another pretrial conference to discuss, among other things, the setting

of deadlines for filing final witness and exhibit disclosures, exchanging and marking trial

exhibits, designating deposition testimony for presentation at trial, motions in limine,

proposed instructions in jury trials, and proposed findings of fact and conclusions of law

in bench trials.

IT IS SO ORDERED.

Dated May 22, 2015, at Kansas City, Kansas.

s/ Teresa J. JamesTeresa J. JamesU. S. Magistrate Judge


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OFFICE OF ATTORNEY GENERALDEREK SCHMIDT

s/ Steve R. Fabert

Steve R. Fabert, #10355M.J. Willoughby, #14059Assistant Attorney GeneralMemorial Bldg., 2 nd Floor120 SW 10 th AvenueTopeka, Kansas 66612-1597Tel: (785) 368-8420; Fax: (785) 296-6296Email: [email protected]@ag.ks.gov

Attorneys for Defendants

/s/ Stephen Douglas BonneyStephen Douglas Bonney (#12322)ACLU Foundation of Kansas3601 Main StreetKansas City, Missouri 64111(816) 994-3311(816) [email protected] P. Johnson, KS Bar #22289Denton US, LLP4520 Main StreetSuite 1100Kansas City, MO 64111816/460-2400816/531-7545 (fax)[email protected] A. Block [admitted pro hac vice]AMERICAN CIVIL LIBERTIESUNION FOUNDATION125 Broad Street, Eighteenth Floor

New York, NY 10004(212) 549-2593

[email protected]


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