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IN THE UNITED STATES DISTRICT COURT

FOR 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-DDC-TJJv. )

)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 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), ) 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. ) _________________________________________ )

RESPONSE OF DEFENDANTS TO

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Defendants oppose plaintiffs’ motion for summary judgment. The discovery record

affirmatively establishes that the wrong plaintiffs have sued the wrong defendants for relief that

is not available in this Court. No plaintiff is suffering an impairment of federally protected rights

at the hands of any of the defendants.

Case 2:14-cv-02518-DDC-TJJ Document 115 Filed 04/13/15 Page 1 of 49

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The motion for summary judgment does not present a prima facie right to the relief

sought and so would not be grantable even if no defendant responded to it. The motion for

summary judgment contains no argument or authorities that discuss a plaintiff’s burden of proof

in a case seeking to declare a wide array of laws, most of which are not specified, facially

unconstitutional. No facially unconstitutional Kansas law is identified in the motion. The official

actions about which the various plaintiffs complain are not objectionable under any existing

federal law. These plaintiffs have no right to sue for the abstract impairment of assumed rights

that would belong to others if such supposed constitutional rights were ever established. They

have no right to enjoin by category the enforcement of every state law that they would prefer not

to obey.

The motion for summary judgment is no more than a laundry list of special privileges

desired by plaintiffs. None of the defendants is preventing any plaintiff from marrying a spouse

of choice in Kansas. There is no present case or controversy between the original four plaintiffs

and any defendant. There is no present case or controversy against Susan Mosier, whose office is

not a participant in any grievance described in the First Amended Complaint. Any supposed

grievance against the other three defendants is beyond this Court’s subject matter jurisdiction.

The relief requested here should instead be sought in a state forum.

None of the plaintiffs is inconvenienced by rules that do not apply to them. There is no

justiciable claim for allegedly discriminatory paperwork burdens in the operation of the Kansas

personal income tax self-assessment process due to the Tax Injunction Act, and even if the Court

had jurisdiction to entertain that claim it would fail on the merits because no plaintiff whose

rights are burdened by the offending rule is a party to this case. There is no constitutional right to


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obtain a driver license using an alias of choice, and no Kansas law prohibiting that result is being

discriminatorily applied to any plaintiff. There is no constitutional right to be insured under a

spouse’s employment-related health insurance policy, and no Kansas law relating to that subject

is being discriminatorily applied to any plaintiff by any defendant. This Court lacks jurisdiction

to order the State of Kansas or any of its agencies to pay any plaintiff’s medical bills.

RESPONSE TO STATEMENT OF MATERIAL FACTS

Defendants object to the employment of hearsay affidavits in support of the motion for

summary judgment. The only evidentiary matters offered in support of the motion are the

declarations of plaintiffs themselves, who are not competent to testify to most of what the

declarations contain. Fed R. Civ. P. 56(c)(4) requires that an affidavit or declaration used to

support or oppose a motion for summary judgment “must be made on personal knowledge, set

out facts that would be admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters stated.” District Court Rule 56.1(d) requires that all

declarations offered in support of a motion for summary judgment “must be made on personal

knowledge and by a person competent to testify to the facts stated that are admissible in

evidence.” Both the Court and opposing parties are free to deem any matter that is supported

solely by incompetent declarations filled with inadmissible hearsay as wholly unsupported. See

McCleary v. Nat' l Cold Storage, Inc., 67 F. Supp. 2d 1288, 1299 (D. Kan. 1999) at footnote 3.

RESPONSE TO PLAINTIFFS’ ENUMERATED FACTS

1. Controverted. Paragraph one is not a statement of fact, but a legal argument concerning the

sufficiency of the First Amended Complaint to state claims that are so broadly described. The

First Amended Complaint relates exclusively to declaratory and injunctive relief grantable


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against the six named defendants, not universal relief addressed to every unidentified practice

of anyone and everyone employed by the State of Kansas.

2. Controverted in part. The first sentence of paragraph two is not material to any issue

addressed in the motion for summary judgment. The second sentence is controverted by the

second declarations of Marie and Brown, who state that they have no present intention of

seeking a Kansas marriage license and will not seek any such license during the pendency of

this litigation. (Second Declaration of Marie, ¶ 7; Second Declaration of Brown, ¶ 7.) Both

Marie and Brown are free to obtain marriage licenses from Kansas court clerks at any time

during the pendency of this litigation, according to the affidavits of Hamilton and Lumbreras

filed in support of those defendants’ motion to dismiss. Plaintiffs Marie and Brown have

testified that they have no intention to make any effort to obtain a Kansas marriage license

during the pendency of this lawsuit, including any appeals, and that they will not do so after

the litigation is completed if all of the requested relief is not granted and even private

organizations that are not parties begin to recognize same-sex marriages. (Marie depo. pp.

27, 37-38; Brown depo. pp. 25-30).

3. Controverted in part. The first sentence of paragraph three is not material to any issue

addressed in the motion for summary judgment. The second sentence is controverted by the

second declarations of Wilks and DiTrani, who state that they have no present intention of

seeking a Kansas marriage license and will not seek any such license during the pendency of

this litigation. (Second Declaration of Wilks, ¶ 7; Second Declaration of DiTrani, ¶ 7). Wilks

and DiTrani are free to obtain marriage licenses from Kansas court clerks at any time during

the pendency of this litigation, according to the affidavits of Hamilton and Lumbreras filed in


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support of those defendants’ motion to dismiss. Plaintiffs Wilks and DiTrani have testified

that they have no intention to make any effort to obtain a Kansas marriage license during the

pendency of this lawsuit, including any appeals, and that they will not do so after the

litigation is completed if all of the requested relief is not granted. (DiTrani depo. pp. 18-19,

24-25; Wilks depo. pp. 53-54, 57-59)

4. Uncontroverted.

5. Uncontroverted.

6. Uncontroverted.

7.

Uncontroverted.

8. Uncontroverted.

9.

Uncontroverted.

10. Controverted in part. Plaintiffs’ paragraph 10 is incomplete as it does not include all of the

language of K.S.A. 23-2505(a) (2014 Supp.), which speaks for itself and must be read in its

entirety, including along with and in conjunction with all of the other statutes under Article

23 which inform its contents. Plaintiff’s paragraph 10 cites the 2007 edition of the statute

which has since been amended.

11. Controverted. Plaintiffs’ attempts to paraphrase the Kansas statutes in question are incorrect

and incomplete and are not supported by the citation to the statutes in question, which have

been amended since the 2007 version cited by Plaintiffs and which speak for themselves as to

their respective contents.

12. Controverted, but also not material. Plaintiffs have not returned to the Clerks’ Offices to

comply with all of the requirements for issuance of a license, including submission of all


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required documentation, including the worksheet, and the tender of required fees. Affidavit

of Douglas Hamilton, Dec. 10, 2014 (Doc. 59-1), at ¶ 7; Affidavit of Bernie Lumbreras, Dec.

10, 2014 (Doc. 59-2), at ¶¶ 7-8. The stated fact is also not material because the Second

Declarations of Marie and Brown state that they have no present intention of seeking a

Kansas marriage license and will not seek any such license during the pendency of this

litigation, as do the Second Declarations of DiTrani and Wilks (Second Declaration of Marie,

(Doc. 86-6), at ¶ 7; Second Declaration of Brown (Doc. 86-7), ¶ 7; Second Declaration of

DiTrani (86-9), ¶ 6; Second Declaration of Wilks (Doc. 86-8), ¶ 6). Marie, Brown, DiTrani

and Wilks are free to obtain marriage licenses from Kansas court clerks at any time during

the pendency of this litigation, according to the affidavits of Hamilton and Lumbreras filed in

support of those defendants’ motion to dismiss. Plaintiffs Marie and Brown have testified

that they have no intention to make any effort to obtain a Kansas marriage license during the

pendency of this lawsuit, including any appeals, and that they will not do so after the

litigation is completed if all of the requested relief is not granted and even private

organizations that are not parties begin to recognize same-sex marriages. (Marie Depo. pp.

27, 37-38; Brown Depo. pp. 25-30; DiTrani depo. pp. 18-19, 24-25; Wilks depo. pp. 53-54,

57-59).

13. Uncontroverted but not material as Plaintiffs have since indicated they have no present

intention of seeking a marriage license and will not seek any such license during the

pendency of this litigation. (Second Declaration of Marie, (Doc. 86-6), at ¶ 7; Second

Declaration of Brown (Doc. 86-7), Plaintiffs have not returned to the Clerk’s Office to

tender the worksheet or the required fee or to pick up the marriage license, Affidavit of


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Douglas A. Hamilton (Doc. 59-1), at ¶ 6, and as of November 13, 2014, Administrative

Order 14-17 has been entered in the 7th Judicial District, superseding the Administrative

Order in effect on October 8, 2014. Id. (at ¶ 4, citing Admin Order 14-17, attached thereto).

14. Controverted in part, but also irrelevant and immaterial as Administrative Order 14-13 has

been withdrawn and superseded by Administrative Order 14-17, entered on or about

November 13, 2014. Although immaterial, the stated fact is controverted as Administrative

Order 14-13, which speaks for itself as to its contents, was filed on October 8, 2014 and

reflects Chief Judge Fairchild’s legal determination that Thomas Tuozzo and Robert

Hedlund’s application, which had been referred to Chief Judge Fairchild for determination,

could not be granted because of Judge Fairchild’s determination of Kansas law. Chief Judge

Fairchild did order as follows: “The Clerk of the District Court shall not issue a marriage

license to these applicants or to any other applicants of the same sex. When the Clerk rejects

the application, the clerk shall give the applicants a copy of this order.” It is also

controverted that Judge Fairchild’s determination of legal entitlement was “ministerial,” as

the Kansas Supreme Court has held that this determination was a judicial determination.

State ex rel. Schmidt v. Moriarty, No. 112,590, at 4-5 (Doc. 59-6).

15. Uncontroverted for purposes of this motion but also not material because the Second

Declarations of Marie and Brown state that they have no present intention of seeking a

Kansas marriage license and will not seek any such license during the pendency of this

litigation (Second Declaration of Marie, (Doc. 86-6), at ¶ 7; Second Declaration of Brown

(Doc. 86-7), ¶ 7.


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16. Controverted in part. Although the application was signed, it was not completely filled out.

The stated fact is also controverted to the extent that the fact states or implies that any

determination on same-sex marriage licenses was made by a clerk rather than a judge.

Answer of Defendants Hamilton and Lumbreras (Doc. 49), at ¶ 12; Affidavit of Bernie

Lumbreras (Doc. 59-5), at ¶ 6; Affidavit of Bernie Lumbreras (Doc. 59-2). The stated fact is

also not material for reasons including that Plaintiffs Wilks and DiTrani have indicated they

have no present intention to seek a marriage license during the pendency of this litigation

(Second Declaration of DiTrani (86-9), ¶ 6; Second Declaration of Wilks (Doc. 86-8), ¶ 6). It

is also not material because Wilks and DiTrani have not returned to submit a completed

worksheet as required, pick up the marriage license or tender the required fee or otherwise

apply or re-apply for such license. Affidavit of Bernie Lumbreras (Doc. 59-2, at ¶ 7). It is

also not material because on November 13, 2014, Chief Judge James Fleetwood entered

Administrative Order 14-08 in the 18th Judicial District regarding issuance of same-sex

marriage licenses.

17.

Uncontroverted that this Court issued a Memorandum and Order (Doc. 29), but controverted

that plaintiffs’ stated fact correctly characterizes the contents of the Order or the Order

language which speaks for itself.

18. Uncontroverted but not material.


20. Uncontroverted that Chief Judge Fairchild issued Administrative Order 14-17 and that Chief

Judge Fleetwood issued Administrative Order 14-03 and uncontroverted that district court

clerks in the 7th and 18th judicial districts are issuing marriage licenses to same-sex applicants


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but controverted that the orders were issued because of the preliminary injunction or only

exist because of the preliminary injunction of this Court for reasons including that Chief

Judge Fairchild and Fleetwood were not named parties or defendants. The statement of

causation is also controverted in that the Chief Judges are subject to orders of the Supreme

Court including those issued in State ex. rel. Schmidt v. Moriarty, 112,590. The Supreme

Court’s Orders in State ex rel. Schmidt v. Moriarty are subject to judicial notice as per Fed. R.

Evid. 201(b).

21. Controverted in part. It is uncontroverted that these four plaintiffs have not applied for and

have no intention to apply for marriage licenses from any Kansas court clerk during the

pendency of this litigation. Plaintiffs do not allege that they intend in the future to apply to

any named defendant in this case for a marriage license at any time. (Second declarations of

Marie, Brown, Wilks, and DiTrani at paragraph 7; Plaintiffs’ response to Stipulations #116

and #123).

22. Uncontroverted but not material. In this lawsuit plaintiffs are not challenging the

constitutionality of the federal law that allows a state to give no effect to another state’s

recognition of a same-sex marriage, 28 U.S.C. § 1738C (1996). (Plaintiffs’ response to

Stipulation #1)

23. Uncontroverted but not material. In this lawsuit plaintiffs are not challenging the

constitutionality of the federal law that allows a state to give no effect to another state’s

recognition of a same-sex marriage, 28 U.S.C. § 1738C (1996). (Plaintiffs’ response to

Stipulation #1)

24. Uncontroverted.


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27. Uncontroverted.

28. Uncontroverted but not material. No plaintiffs making a claim against defendant Jordan

allege that they have ever filed a joint income tax return or that they plan to file a joint

income tax return.

29. Controverted. Same sex married couples who file their federal income tax returns separately

are not required to submit any more state tax forms than a similarly situated heterosexual

married couple file. The tax notice relied upon by plaintiffs would not impose any paperwork

burden on plaintiffs in addition to what a similarly situated heterosexual couple would

provide. (Plaintiffs’ responses to Stipulations #52 and 53; affidavit of Richard Cram)


are not required to submit any more state tax forms than a similarly situated heterosexual

married couple file. The tax notice relied upon by plaintiffs would not impose any paperwork

burden on plaintiffs in addition to what a similarly situated heterosexual couple would

provide. (Plaintiffs’ responses to Stipulations #52 and 53; affidavit of Richard Cram)

31. Uncontroverted.


are not required to submit any state tax forms in addition to those that a similarly situated

heterosexual married couple file. The tax notice relied upon by plaintiffs would not impose

any paperwork burden on plaintiffs in addition to what a similarly situated heterosexual


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couple would provide. (Plaintiffs’ responses to Stipulations #52 and 53; affidavit of Richard

Cram)

33. Uncontroverted.

34. Uncontroverted.

35. Controverted. The paragraph misstates the substance of the referenced laws. Kansas law does

not require the issuance of a new driver license in any arbitrarily selected name, just because

a married person prefers to be known by that name. The Kansas driver license issued to each

of the plaintiffs in this case shows that person’s legal name as required by all relevant state

and federal laws. (DL documents produced in response to defendants’ requests for

production.) No plaintiff in this case alleges facts that would trigger an obligation to issue a

new driver license pursuant to Kansas laws. (Affidavit of Timothy Parks)













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39.

Controverted. Plaintiffs Fowler, Bohenblust, and Hickman have filed this lawsuit using these

surnames, which is prima facie evidence that their legal names are the ones appearing in the

case caption rather than the pseudonyms they allege they would now prefer to employ. These

plaintiffs continue to use some identification documents using the surnames that appear in

the case caption. See deposition exhibits attached to the transcripts of the Fowler/Braun,

Bohnenblust/Pottroff, and Hickman/Spain depositions.

40. Controverted. K.S.A. 23-2506 on its face states that it permits issuance of a driver license in

a new name acquired by marriage only if the marriage is performed under Kansas law.

41. Controverted in part. It is uncontroverted that plaintiffs Bohnenblust and Hickman seek to

restore their premarital birth names by misusing the provisions of K.S.A. 23-2506. This

technique is not permitted by Kansas law, which allows only the adoption of a new name, not

reversion to an old name previously used by the applicant. Neither a heterosexual couple nor


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a homosexual couple would be allowed to achieve the result sought by these plaintiffs.

(Affidavit of Timothy Parks)

42. Controverted. Plaintiffs Fowler, Bohenblust, and Hickman have filed this lawsuit using these


case caption rather than the pseudonyms they allege they would prefer to employ. These




43.







44.






Bohnenblust/Pottroff, and Hickman/Spain depositions. K.S.A. 23-2506 permits issuance of a

driver license in a new name acquired by marriage only if the marriage is performed under

Kansas law.


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45. Controverted. Plaintiffs Fowler, Bohenblust, and Hickman have filed this lawsuit using these







Kansas law.

46.








Kansas law.

47. Controverted. The paragraph misstates the substance of the controlling regulation,

K.A.R.108-1-1, as amended effective January 2, 2015. The regulation requires that the status

of dependent spouse be determined under Kansas law, not the law of any other state. The

regulation has no language expressly determining whether a spouse can or cannot be a person

of the same sex as the employee requesting to add the dependent spouse. (Mike Michael

affidavit)


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48. Uncontroverted.

49. Uncontroverted.

50. Controverted. Employee dependent eligibility is controlled by the provisions of K.A.R.108-

1-1, as amended effective January 2, 2015. The regulation requires that the status of

dependent spouse be determined under Kansas law, not the law of any other state. The

regulation has no language expressly determining whether a spouse can or cannot be a person

of the same sex as the employee requesting to add the dependent spouse. (Mike Michael

affidavit)

51.

Uncontroverted.

52. Uncontroverted.

53.

Uncontroverted.

54. Controverted. Peters alleges he was married in Iowa, not in Kansas, so his purported spouse

could not qualify as an insurable dependent under Kansas law as authorized by 28 U.S.C. §

1738C. Plaintiffs are not challenging the constitutionality of the federal law that allows a

state to give no effect to another state’s recognition of a same -sex marriage, 28 U.S.C. §

1738C (1996). (Plaintiffs’ response to Stipulation #1)

55. Controverted. Peters alleges he was married in Iowa, not in Kansas, so his purported spouse

could not qualify as an insurable dependent under Kansas law as authorized by 28 U.S.C. §

1738C. Plaintiffs are not challenging the constitutionality of the federal law that allows a

state to give no effect to another state’s recognition of a same -sex marriage, 28 U.S.C. §

1738C (1996). (Plaintiffs’ response to Stipulation #1)

56. Controverted. Neither Defendant Michael nor anyone employed in his agency has authority


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to decide constitutional challenges to Kansas laws or administrative regulations. Any state

employee who wishes to challenge the constitutionality of a statute or regulation would need

to obtain a judgment from a court of competent jurisdiction. (Mike Michael affidavit)









LOCAL RULE 56.1(b)(2) STATEMENT OF ADDITIONAL MATERIAL FACTS

THAT APPEAR WITHOUT CONTROVERSY

FACTS RELATING TO ALL CLAIMS

1. The original complaint was filed by four unmarried plaintiffs who sought to 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 and

three 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. (Doc. 52,

paragraph 8). Plaintiffs Fowler and Braun allege that they were married in the state of

Illinois in 2014. (Doc. 52, paragraph 9). Plaintiffs Bohnenblust and Hickman allege that

they were married in Kansas during November of 2014. (Doc. 52, paragraph 10).


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7. In this lawsuit plaintiffs are not challenging the constitutionality of the federal law that

allows a state to give no effect to another state’s recognition of a same -sex marriage, 28

U.S.C. § 1738C (1996). (Plaintiffs’ response to Stipulation #1)

8. The marriage laws of Kansas have never permitted any person to marry any other person

without restriction. (Plaintiffs’ response to Stipulation #10)

9. There is a rational basis for the Kansas statutory prohibition on underage marriages, and

that prohibition is constitutionally valid. (Plaintiffs’ response to Stipulations #11 and

#12).

10.

There is a rational basis for the Kansas statutory prohibition on incestuous marriages, and


#14).

11. There is a rational basis for the Kansas statutory prohibition on bigamous marriages, and


#16).

FACTS RELATING TO PLAINTIFFS

12. Plaintiffs Marie, Brown, Wilks, and DiTrani are no longer seeking to obtain marriage

licenses from any of the defendants. They have no intention to seek a marriage license

until after this lawsuit has been litigated to a final conclusion, and even then do not plan

to obtain licenses if all the relief sought by every plaintiff is not granted by the Court and

affirmed on appeal. (Marie depo. pp. 27, 37-38; Brown depo. pp. 25-30; DiTrani depo.

pp. 18-19, 24-25; Wilks depo. pp. 53-54, 57-59)

13. Plaintiffs Wilks and DiTrani participated in a “civil commitment ceremony” in Wichita in


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allowed same-sex couples to file as married persons. (Peters depo. at pp. 36-37) Peters

determined that he and Mohrman would minimize their income tax burden if they filed

separately. (Peters depo. at p. 33) He mistakenly prepared duplicate federal returns as

single persons because he believed that Kansas law required it. (Peters depo. at p. 38-42)

For 2014 Peters and Mohrman have again filed separately. There is no difference in the

amount of state tax owed whether they use federal forms for single persons or for married

persons filing separately. (Peters depo. at p. 42)

18. Carrie Fowler was married to Bryan Fowler in Kansas in 1997 and was later divorced

from him in Atchison County. She has four minor children from that marriage.

(Fowler/Braun depo. at pp. 11-12)

19.

Carrie Fowler never obtained Illinois identification documents in the name of Kerry

Braun when she married plaintiff Sarah Braun in Illinois in June of 2014. None of the

paperwork related to the Illinois marriage states that she wanted to change her name to

Carrie Braun. (Fowler/Braun depo. at pp. 24-26)

20.

Plaintiffs Fowler and Braun are Kansas residents at this time, but they plan to relocate to

Michigan in the future to be near Sarah Braun’s family even thought they know that

Michigan law will not recognize their marriage. (Fowler/Braun depo. at p. 16)

21. The only time that Carrie Fowler ever sought to obtain a Kansas driver license in the

name of Carrie Brown was on June 25, 2014, more than three months prior to the filing

of this lawsuit. At that time she did not present any of the paperwork required by Kansas

law to obtain a new driver license in a name other than Carrie Fowler. (Fowler/Braun

depo. at pp. 26-28) She has never sought to file a civil name change petition.


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(Fowler/Braun depo. at p. 32)

22. Sarah Braun has no grievance other than her wish that Carrie fowler be allowed to

change her name to Carrie Braun. (Carrie Braun depo. at p. 9)

23. Darci Bohnenblust was Darci Pottroff before she married Jerry Bohnenblust in 1982. The

marriage lasted until 1995 and produced two children. She did not seek restoration of her

former name at the time of the divorce because of the children. (Bohnenblust Pottroff

depo. at pp. 8, 12-13)

24. Joleen Hickman was known as Joleen Spain until she married Philip Hickman in 1977.

The marriage produced one child before they were divorced in 1986. She also retained

her former name at the time of her Kansas divorce. (Hickman/Spain depo. at pp. 7-9)

25.

Darci and Joleen went to Arkansas in 2005 to be married. They had a formal ceremony

presided over by an official. Darci does not know whether that marriage was legal in

Arkansas or not. (Bohnenblust/Pottroff depo. at pp. 23-24 ) In November of 2014 they

obtained a marriage certificate from the Clerk of the Riley County District Court in

Kansas. Their Kansas marriage license indicated on it that each of them desired to restore

their former surnames of Pottroff and Spain. (Bohnenblust/Pottroff depo. at pp. 30, 37)

26. On November 20 or 21 of 2014 they went together to a Department of Motor Vehicles

office east of Manhattan and asked for the restoration of their former names on newly

issued driver licenses. Their request was refused. (Bohnenblust/Pottroff depo. at pp. 41-

46) Neither Darci nor Joleen want to file a civil name change petition or a motion for

restoration in their divorce proceedings because they don’t want to pay for a lawyer.

(Bohnenblust/Pottroff depo. at pp. 38-39 )


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27. Darci asked her employer, Kansas State University, to add Joleen to her employment-

related health insurance as a spouse, and the request was denied. Financially any change

from Joleen’s own employment related coverage would result in no savings. It would

result in Joleen’s medical bills being paid by the state of Kansas rather than a private

insurer. (Bohnenblust/Pottroff depo. at pp. 30, 57) Darci is not interested in obtaining a

court order that would fail to get the medical bills paid by the State of Kansas.

(Bohnenblust/Pottroff depo. at pp. 56-57) Joleen is satisfied with her personal policy at

her place of employment. (Hickman/Spain depo. at p. 12)

FACTS RELATING TO CLAIMS AGAINST DEFENDANT CLERKS

28. In Kansas, district courts exist in each of the Kansas counties. K.S.A 20-301.

29.

A clerk of the district court is appointed in each county. K.S.A. 20-343 (2014 Supp.).

30. 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 (2014 Supp).

31.

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.

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]he supreme

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 in to 31 judicial districts. Kan. Const., Art. 3,

§6; K.S.A. 4-202, et seq.


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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 Rule

107(b)(2).

37. The Kansas Constitution provides for three separate branches of state government. 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.).

40. In performing the marriage license function, the clerk operates as an aide to the judges in

their respective districts, six district judges in the 7th Judicial District and twenty-eight in

the 18th Judicial District. Affidavit of Douglas Hamilton (Doc. 23-7), dated October 30,

2014, at ¶ 3; Affidavit of Bernie Lumbreras (Doc. 23-8) dated October 29, 2014, at ¶ 3.

41. If there is a question about whether an applicant is legally entitled to a marriage license, a

judge decides the issue. Affidavit of Douglas Hamilton (Doc. 23-7) dated October 30,

2014, at ¶ 4; Affidavit of Bernie Lumbreras (Doc. 23-8) dated October 29, 2014, at ¶ 4.

42. For example, for underage applicants, a judge may, after due investigation, give consent

and authorize a marriage. Clerks do not have that authority. K.S.A. 23-2505(c) (2014

Supp.).


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43. The statutes do not require an applicant to produce a birth certificate as part of the

marriage license process. K.S.A. 23-2505 (2014 Supp.).

44. An oath is administered to the marriage license applicant and the judge or clerk 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 a

misdemeanor 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 play no

role in the function set forth in K.S.A. 23-2504 (2014 Supp.). Affidavit of Douglas

Hamilton (Doc. 23-7) dated October 30, 2014, at ¶ 4; Affidavit of Bernie Lumbreras

(Doc. 23-8) dated October 29, 2014, at ¶ 5.

47. A district court clerk is not the official records custodian for marriage license records in

Kansas. K.S.A. 23-2512 (2014 Supp.).

48. A district court clerk has no role in determining the validity of marriage in Kansas,

including such matters as intestate succession. Affidavit of Douglas Hamilton (Doc. 23-

7) dated October 30, 2014, at ¶ 9; Affidavit of Bernie Lumbreras (Doc. 23-8) dated

October 29, 2014, at ¶ 9.

49. K.S.A. 23-2510 (2014 Supp.) imposes a license fee imposed on each marriage applicant

of $59 which is remitted to the state treasurer to be deposited to several different state

funds, including the protection from abuse fund, the family and children trust account of

the family and children investment fund, the crime victims assistance fund, the

nonjudicial salary adjustment fund and the state general fund.


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50. On October 6, 2014, Kerry Wilks and Donna DiTrani went to the Sedgwick County

Courthouse to apply for a marriage license. Wilks Depo. at 23:4-19; 24:14-19.

51. Wilks spoke to an African American person at the desk. Wilks Depo. at 25:8-12.

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

charge. Wilks Depo. at 26:1-7.

53. Neither Wilks nor DiTrani identified Bernie Lumbreras as someone they had spoken to

regarding their application. DiTrani Depo. at 27:13-15; Wilks Depo. at 62.

54. Wilks and DiTrani were referred to Judge James Fleetwood and spoke with him. Wilks

Depo. at 26:11-16.

55. Judge Fleetwood informed Wilks and DiTrani that he was unable to authorize the

issuance of a marriage license. Wilks Depo. at 27:1-3; DiTrani Depo. at 19:4-21.

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

Wilks Depo. at 64:6-8.

57. Wilks and DiTrani knew he was a judge of the district court. DiTrani Depo. at 19:4-21;

28:24-25; Wilks Depo. at 65:2-4.

58. On or about October 7, 2014, the Office of Judicial Administration issued a

memorandum advising the 31 Chief Judges of the recommendation that applicants for

same-sex marriage licenses should be referred to the chief judge for determination.

Exhibit A to Affidavit of Sandra McCurdy, at ¶ 4 (Doc. 23-2).

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

District, received an application from a same-sex couple to obtain a marriage license

pursuant to K.S.A. 23-2505(a). Affidavit of Sandra McCurdy, at ¶ 2 (Doc. 23-2).


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60. Clerk McCurdy referred the application to Tenth Judicial District Chief Judge Kevin P.

Moriarty. Affidavit of Sandra McCurdy, at ¶ 3 (Doc. 23-2).

61. On October 8, 2014, Chief Judge Kevin P. Moriarty issued Amended Administrative

Order No. 14-11, directing the Clerk of the District Court to issue marriage licenses to

same-sex couples provided they were otherwise qualified to marry under Kansas law.

Affidavit of Sandra McCurdy, at ¶ 5 (Doc. 23-2).

62. On or about October 8, 2014, the Clerk of the District Court of the 7th Judicial District

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 a

marriage license under Kansas law. Admin. Order 14-3, filed Oct. 8, 2014 (attached to

Hamilton Affidavit, Doc. 23-7).

63. On October 8, 2014, Chief Judge Fairchild issued Administrative Order 14-13 analyzing

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 to these

applicants or to any other applicants of the same sex. When the Clerk rejects the

application, the clerk shall give the applicants a copy of this order.” Admin. Order 14-3,

filed Oct. 8, 2014 (attached to Hamilton Affidavit, Doc. 23-7).

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

11:15-18.

65. Brown works as a prosecutor in Geary County. Brown Depo. at 10:12-15.

66. Before the application was denied, Michelle Brown was aware as of Wednesday October

8 or Thursday October 9, 2014 that the Douglas county clerk’s office would not accept a


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same sex marriage application. Brown read the administrative order issued by Chief

Judge Fairchild. Brown assumed that the clerk’s office staff would obey the Chief

Judge’s Order. Brow Depo. at 20:22-22:15.

67. On Thursday, October 9, 2014, Wilks and DiTrani returned to the Sedgwick County

Courthouse and were given an application for a marriage license, which they returned to

the person at the desk. They were asked to wait. Wilks Depo. at 33:1-16.

68. Wilks and DiTrani were asked to come back up and a prepared sheet was read that they

would not issue a license at that time. Wilks recorded this on a video recording. Wilks

Depo. at 34:25-35:11.

69. The October 9 determination regarding Wilk s’ and DiTrani’s application and the

statement was issued by Judge Eric Yost acting in Chief Judge Fleetwood’s absence.

Affidavit of Bernie Lumberas (Doc. 23-8), at ¶ 6.

70. Wilks and DiTrani never returned to the Clerk’s Office to submit a completed worksheet

or to request issuance of a marriage license. Affidavit of Bernie Lumbreras (Doc. 59-2)

dated December 10, 2014, at ¶ 7.

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. Affidavit of Sandra

McCurdy (Doc. 23-2), at ¶ 6.

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 immediate relief

against respondents Chief Judge Moriarty and Sandy McCurdy on behalf of the State of

Kansas. The action as assigned case no. 112,590. The filings in State ex. rel. Schmidt v.


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Moriarty are subject to judicial notice as per Fed. R. Evid. 201(b). A copy of the

Supreme Court’s November 18, 2014 decision is in the record as Doc. 59-6.

73. On October 10, 2014, in case no. 112,590, the Kansas Supreme Court granted the State’s

request for a temporary stay of Amended Administrative Order 14-11. The stay was

granted “in the interest of establishing statewide consistency” pending the Court’s further

order.

74. On November 13, 2014, Chief Judge Fairchild issued Administrative Order 14-17,

repealing Administrative Order 14-13, directing Hamilton to issue same sex marriage

licenses to applicants who are otherwise qualified. Attachment to Affidavit of Douglas

Hamilton (Doc. 59-1).

75.

On November 13, 2014, Chief Judge Fleetwood issued Administrative Order 14-08,

directing Lumbreras to issue same sex marriage licenses to applicants who are otherwise

qualified. Attachment to Affidavit of Bernie Lumbreras (Doc. 59-2).

76. Marie and Brown have not returned to the Douglas County Courthouse to attempt to pick

up a marriage license. Affidavit of Douglas Hamilton (Doc. 59-1), at ¶ 6.

77. On November 18, 2014, the Supreme Court issued an Order in State ex. rel. Moriarty,

No. 112,590, finding that Chief Judge Moriarty was acting within his jurisdiction in

making the legal determination of whether the same-sex applicants were legally entitled

to a marriage license as per K.S.A. 23-2505(a). Slip op at 4-5 (Doc. 59-6).

78. The Supreme Court’s November 18, 2014, Order provided that each Chief Judge of the

31 Judicial Districts was free to make the legal determination for himself or herself

regarding whether to issue same-sex marriage licenses within the judicial district. Slip


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op. at 7-8 (Doc. 59-6).

79. On January 16, 2015, the U.S. Supreme Court accepted certiorari in DeBoer v. Snyder on

the following question: “Does the Fourteenth Amendment require a state to license a

marriage between two people of the same sex?” No. 14-571, 83 U.S. L.W. 3315, 2015

WL 213650 (U.S. Jan. 16, 2015).

FACTS RELATING TO DEFENDANT MOSIER

80. Neither the Secretary of the Kansas Department of Health and Environment nor any other

KDHE employee participates in evaluating the qualifications of applicants to determine

whether they are lawfully entitled to the issuance of a marriage license consistent with the

statutory limitations set forth in K.S.A. 2014 Supp 23-2501 et seq. Decisions to issue

marriage licenses to same-sex couples or to refuse to issue licenses to those couples are

made by court personnel, without participation by the Secretary or by any KDHE

employee. (Robert Moser affidavit)

81. 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 marriages that have already been performed. It gives the KDHE

secretary no supervisory authority over decisions concerning denial of applications based

on the sex of the applicants. (Robert Moser affidavit)

82. 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. This statute gives the KDHE secretary no supervisory authority over court


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personnel in deciding whether to issue marriage licenses. (Robert Moser affidavit)

83. K.S.A. 2014 Supp. 23-2512 directs the KDHE secretary to maintain indexed records of

marriages once they have been performed and to provide certified copies when requested.

It gives the KDHE secretary no authority over court personnel in deciding whether to

issue marriage licenses. (Robert Moser affidavit)

84. Any guidance provided by KDHE employees to court personnel is limited to helping

them fill out the forms to report information to the Office of Vital Statistics. None of the

advice provided by KDHE employees relates to the performance by court personnel of

their role in assuring that marriage licenses are not issued to persons who are not legally

entitled to be married. (Robert Moser affidavit)

85.

Prior to the filing of the First Amended Complaint in the above captioned matter, new

marriage license forms were distributed to Kansas district court clerks that delete all

references to men, women, husbands, wives, brides or grooms. These new forms are

intended for use when applicants of the same sex present themselves to apply for

marriage licenses, and the court clerks have been advised to employ the new forms for

that purpose. (Tim Keck affidavit)

86. The Kansas State Employees Health Care Commission is an independent agency of the

State of Kansas that is not subordinate to the Kansas Department of Health and

Environment. See K.S.A. 75-6502.

FACTS RELATED TO DEFENDANT MICHAEL

87. Health insurance for state employees and certain of their dependents is regulated by

statute and administrative regulations. K.S.A. 2014 Supp. 75-6501(c) gives to the Kansas


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State Employees Health Care Commission the authority to define what persons may or

may not qualify for insurance benefits under the plan. Eligibility rules are not made by

the Director of the Kansas State Employee Health Benefits Plan. (Mike Michael

affidavit)

88. Participation in the state’s health care benefits program is voluntary. Employees decide

whether to seek to add a dependent to an employee’s health insurance coverage. An

employee’s dependents have no right to apply for coverage themselves. (Mike Michael

affidavit)

89.

The current categories of dependent persons who are potentially eligible for coverage 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 status

of dependent spouse be determined under Kansas law, not the law of any other state. The

regulation has no language expressly determining whether a spouse can or cannot be a

person of the same sex as the employee requesting to add the dependent spouse. (Mike

Michael affidavit)

90. Defendant Michael has not participated in any communications with plaintiffs Peters,

Mohrman, Bohnenblust, and Hickman concerning their alleged attempts to obtain

dependent spouse coverage. Neither Defendant Michael nor anyone employed in his

agency has authority to decide constitutional challenges to Kansas laws or administrative

regulations. Any state employee who wishes to challenge the constitutionality of a statute

or regulation would need to obtain a judgment from a court of competent jurisdiction.

(Mike Michael affidavit)


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FACTS RELATED TO DEFENDANT JORDAN

91. For taxpayers who use the filing status on their federal personal income tax returns of

“married filing separately,” there is no additional preparatory work needed to fill out their

state personal income tax returns using “single” filing status other than transferring the

information from the federal forms to the state forms. (Richard Cram affidavit)

92. Kansas imposes the same personal income tax rates on residents who file as single

unmarried persons or as married residents filing separately. (Richard Cram affidavit)

93. Kansas' Form K-40 personal income tax return is a "self-assessment" tax document. Once

the return is filed, and assuming that the same is not adjusted or audited by the

Department, the amount of tax shown on the return becomes the assessment of the filer's

Kansas personal income tax. (Richard Cram affidavit)

94. For same-sex taxpayers submitting a federal return as married filing separately, their

income would already be separated on the federal income tax return, and those numbers

could be used to submit the Kansas return. (Plaintiffs’ response to Stipulation #52)

95.

No Notice 13-18 worksheet is needed for couples filing federal returns under the status

married filing separately as their income is already separated. (Plaintiffs’ response to

Stipulation #53)

96. Plaintiffs Peters and Mohrman have not submitted a Kansas state income tax return for

2014. (Plaintiffs’ response to Stipulation #56)

FACTS RELATED TO DEFENDANT KASPAR

97. K.S.A. 23-2506 does not provide a method for obtaining restoration of a premarital

surname that was used prior to an earlier marriage. (Parks affidavit)


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98. K.S.A. 23-2506 is normally relied upon by the driver’s license examiner to make changes

expressed in the Kansas marriage license that are associated with couples’ middle names

and/or surnames. Other legal procedures that do not involve Kansas Department of

Revenue’s Division of Vehicles should be employed to initiate a restoration. An example

of another legal procedure would be a name restoration order resulting from a divorce.

(Parks affidavit)

99. Any applicant who wishes to obtain a driver license using the applicant’s name as shown

on his or her birth certificate will be required to provide additional documentation (i.e. a

name change order) if the applicant has an existing record with the Kansas Department of

Revenue’s Division of Vehicles with a name that deviates from the applicant’s name on

the birth certificate. (Parks affidavit)

100. The above described policies concerning the names that are permissible under K.S.A. 23-

2506 are applied the same to both men and women, whether they are heterosexual

couples or otherwise. (Parks affidavit)

ARGUMENT AND AUTHORITIES

Ordinarily jurisdictional defenses would be argued before a defendant’ brief addresses

the merits because there is no need to decide the substantive issues if a jurisdictional defense

prevents the merits from being reached. In this case defendants will reverse the normal order and

speak directly to the merits before going on to analyze the jurisdictional issues, because the lack

of substance on the merits illuminates the propriety of dismissal without prejudice. The facts

offered in support of the motion affirmatively establish that the Court has no subject matter

jurisdiction to decide most if not all of the claims of the various plaintiffs. The motion reinforces


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the propriety of granting the motions to dismiss previously filed by all defendants. Defendants

continue to press for a timely decision on those motions and do not withdraw them by

responding to plaintiffs’ motion for summary judgment.

1. THE MOTION FOR SUMMARY JUDGMENT FAILS TO SET FORTH A PRIMA

FACIE RIGHT TO THE RELIEF REQUESTED.

The motion fails to present a prima facie case that any Kansas law is being applied to any

of them unconstitutionally by any of the defendants, either to prevent them from marrying or to

deny them equal treatment of the law without rational purpose. The four original plaintiffs are

not being prevented from marrying by anyone at all, let alone any of the defendants in this case.

The motion offers neither argument nor factual support for any grievance against Susan Mosier,

whose sole role has been to continue to distribute gender neutral standard forms. The motion

does not establish a plausible inference of an ongoing violation of any plaintiff’s constitutional

rights by any defendant, or any justiciable challenge to Kansas laws as they are now being

applied to the plaintiffs, let alone an uncontroverted right to a permanent injunction.

The First Amended Complaint alleges that plaintiffs are entitled to permanent injunctions

against “any . . . sources of state law that exclude same-sex couples from marriage and that

prohibit the recognition of same-sex marriages performed in Kansas and elsewhere”. Plaintiffs

contend that “sources of state law that exclude same-sex couples from marrying and that prohibit

recognition of same-sex marriages performed in Kansas and elsewhere are facially

unconstitutional and unconstitutional in all their applications, including as applied to Plaintiffs . .

.” See document 52 at pages 29-30. The motion for summary judgment fails to present the

minimal factual and legal basis for any of the relief requested.


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Not every grievance concerning deprivation of an alleged federal right gives rise to a

federal civil rights lawsuit. When Congress has not granted a private cause of action to enforce

the alleged federal right, there is no federal question jurisdiction to entertain a civil lawsuit. See

DeShaney v. Winnebago Cnty. Dep' t of Soc. Servs., 489 U.S. 189, 196-97, 109 S. Ct. 998,

1003-04, 103 L. Ed. 2d 249 (1989); Armstrong v. Exceptional Chi ld Ctr., I nc., 135 S. Ct. 1378,

2015 WL 1419423 (2015). Injunctive relief cannot issue where no plaintiff has a federal cause of

action that provides a jurisdictional basis for a federal district court to grant relief. See Planned

Parenthood of Kansas and M id-M issour i v. Moser , 747 F.3d 814, 838 (10th Cir. 2014).

No plaintiff in this case claims to be a member of a group that is entitled to special

protection under federal law. They do not allege that some federal statute grants a private cause

of action to them. They do not allege, for example, that they are disabled persons who are

prevented from taking advantage of the institution of marriage by reason of some physical or

psychological condition. If they alleged that they were protected under some federal statute, the

Court would then have to determine whether a Congressional abrogation of Eleventh

Amendment immunity could be given effect. States are not constitutionally obligated to

accommodate alleged physical or psychological disabilities in providing access to government

programs, for example. See Board of Trustees of Univ. of Ala. v. Garr ett , 531 U.S. 356, 121 S.

Ct. 955, 148 L. Ed.2d 866 (2001), where the Court held that there is generally no duty imposed

on states under the 14th Amendment to accommodate the needs of disabled persons. See 546

U.S. at p. 158.

Invocation of the Constitution does not by itself give rise to federal question jurisdiction.

The Supremacy Clause does not provide a cause of action to private litigants. See Armstrong v.


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Exceptional Chil d Ctr., Inc., 135 S. Ct. 1378, 2015 WL 1419423 (2015). The central holding of

Armstrong v. Exceptional Chi ld Ctr., I nc. is that there is no implied constitutional cause of

action to enforce the Supremacy Clause. There must instead be a Congressional grant of a private

right to sue for violation of whatever federal law a plaintiff alleges to be supreme over the

challenged state law. Without a Congressional grant of a private right to sue there is no federal

cause of action that could support federal question jurisdiction based upon an alleged interest in

the subject matter of the legislation in question. A footnote in Armstrong confirms that reliance

on 42 U.S.C. would not cure the absence of an express Congressional grant of a private right to

sue, citing Gonzaga Uni v. v. Doe , 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

The sole federal statute relied upon here is 42 U.S.C. §1983.

Armstrong v. Exceptional Chi ld Ctr ., Inc. does not uphold federal subject matter

jurisdiction whenever a plaintiff seeks equitable injunctive relief to prevent a violation of the

constitution. The opinion notes that equitable relief is potentially available in a case where the

district court otherwise has jurisdiction over the parties to a justiciable case or controversy based

upon a claim that enforcement of a state law against a plaintiff is preempted by a federal statute.

But in this case plaintiff is seeking to enjoin laws which are not preempted by any federal statute,

and which are not applicable to plaintiff. See also Chapman v. Houston Welfare Rights

Organization , 441 U.S. 600, 613, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); Denni s v. H iggins , 498

U.S. 439, 450, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991). A cause of action for violation of the

Supremacy Clause relies upon an actual conflict between existing federal laws and state laws,

without which there is no violation of the Supremacy Clause and no right to sue. See Golden


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State Transit Corp. v. City of Los Angeles , 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420

(1989), 493 U.S. at p. 108 footnote 4.

A facial attack on the constitutionality of a statute that does not regulate speech can only

succeed “ by “establish[ing] that no set of circumstances exists under which the Act would be

valid,” i.e., that the law is unconstitutional in all of its applications.” See Washington State

Grange v. Washington State Republi can Party , 552 U.S. 442, 449, 128 S.Ct. 1184, 1191, 170

L.Ed.2d 151 (2008). The motion does not discuss the standard for a facial attack, nor does it

discuss the substance or content of the challenged laws that do not apply to homosexual couples.

The Kansas marriage laws that plaintiffs attack do not just prohibit marriage between two

persons of the same sex. They also prohibit polygamy, polyandry, incestuous marriages,

underage marriages, and other purported marriages that would not be enforceable as ordinary

contracts. Neither the state constitutional provisions nor the state statutes that address these other

social issues are addressed in the motion for summary judgment. Plaintiffs have agreed to

stipulate that these aspects of Kansas law pose no constitutional problems. So the challenged

laws cannot be facially invalid, because they may be constitutionally applied in some

circumstances. Plaintiffs must therefore substantiate an “as applied” challenge rather than

pursuing a facial attack.

Plaintiffs also articulate no facial challenge to any Kansas law that refuses to give effect

in Kansas to a homosexual marriage entered into in another state. Such laws are facially valid by

reason of 28 U.S.C. § 1738C; Will iams v. State of N.C., 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed.

1577 (U.S. 1945); and I n re Estate of Gardiner , 29 Kan. App. 2d 92, 22 P.3d 1086 (2001), aff'd

in part, rev'd in part , 273 Kan. 191, 42 P.3d 120 (2002). They are no more constitutionally


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suspect than a law requiring the holder of any other out-of-state license to obtain a Kansas

license when they reside in Kansas. If Kansas can compel a plumber licensed in Iowa or Illinois

to obtain a Kansas plumber’s license to ply that trade in Kansas without transgressing any

constitutional principle, then the same rule can properly be applied to marriage licenses and

driver licenses. This is not a case where residents of another state are threatened with loss of

legal rights guaranteed by their state of residence merely because they have crossed the border

into Kansas. Each of the plaintiffs was a Kansas resident at all relevant times. The plaintiffs who

traveled to another state to avoid the laws of Kansas have no constitutional grievance if Kansas

elects not to give effect to their foreign licenses. See Will iams v. State of N.C., 325 U.S. 226, 65

S. Ct. 1092, 89 L. Ed. 1577 (U.S. 1945).

FACTUAL ALLEGATIONS CONCERNING MARRIAGE LICENSES

It is uncontroverted that Plaintiffs now can get marriage licenses anytime they want to

pay the fee and fill out the paperwork like any heterosexual couple would. They are no longer

interested in getting marriage licenses, but they also do not want to admit that this claim is no

longer a legitimate legal issue. As defendants pointed out during the hearing on the application

for preliminary injunctive relief, issuance of a piece of paper achieves nothing for these plaintiffs

under Kansas law. Plaintiffs now appear to agree with defendants wholeheartedly on this point,

and will not accept an order compelling issuance of marriage licenses as an effective redress of

their grievance. Past practice is not a basis for injunctive relief consistent with the Eleventh

Amendment. There is no rational basis for an inference that any defendant will again deny

plaintiffs a marriage license, unless the United States Supreme Court announces that there is no

constitutional defect in the challenged laws. Any order issued by this Court will not be accepted


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by these plaintiffs. Only a Supreme Court mandate will put a stop to the litigation, and only the

end of the litigation would induce plaintiffs to renew their quest for licenses. Because no order of

this Court would provide plaintiffs with a remedy that would satisfy their grievance, a permanent

injunction would not be justifiable.

FACTUAL ALLEGATIONS CONCERNING TAXATION

Defendant Jor dan is alleged to have overseen the issuance of a “guidance document” that

describes existing Kansas statutes concerning personal income tax returns filed by married

taxpayers. But plaintiffs Peters and Mohrman do not allege that they are treated any differently

than heterosexual married couples under the “guidance”. Instead they allege that they are treated

differently under Kansas law than they are treated under the Internal Revenue Code. See

paragraphs 34-36 of the first amended complaint. Their grievance about the difference between

federal tax forms and state tax forms does not state a claim for denial of equal protection. There

is no constitutional requirement that state income tax laws conform to federal income tax laws,

as explained in United States v. Windso r, __U.S.__, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013).

Peters and Mohrman do not complain that they are taxed any differently by the State of Kansas

than a heterosexual married couple would be. Their depositions confirm that they have no

grievance, either relating to the financial effect of their filings or with regard to the paperwork

burden of complying with Kansas law. No other plaintiff complains about income taxation.

FACTUAL ALLEGATIONS CONCERNING DRIVER LICENSING

Plaintiffs Fowler and Braun allege that defendants Jordan and Kaspar refuse to let them

rely on Illinois marriage papers to accomplish a name change. But again there is no allegation

that a heterosexual couple from Illinois would be treated differently under Kansas law. K.S.A.


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2014 Supp. 23-2506 plainly limits the procedure they sought to invoke for change of name to

marriages performed in the State of Kansas pursuant to K.S.A. 2014 Supp. 23-2511. No unequal

application of the law has been proved with regard to Fowler and Braun. They admit that their

paperwork does not satisfy the requirements of the statute without regard to their gender.

Plaintiffs Bohnenblust and Hickman allege that they were not allowed to restore their

premarital surnames appearing on their respective birth certificates by presenting a marriage

license that purported to legitimize those changes. But they do not allege that a heterosexual

couple would have been permitted to achieve name restoration in this manner. The statute relied

upon, K.S.A. 2014 Supp. 23-2506, only permits certain new names to be approved, and does not

authorize restoration of a former name using this method. No unequal treatment of similarly

situated persons has been established, nor have they shown any gender-based discriminatory

application of the law. They would not qualify for the requested name changes whatever their

sexual identities might be.

FACTUAL ALLEGATIONS CONCERNING HEALTH INSURANCE

Four plaintiffs (two employees and two same-sex spouses) contend that their right to

participate in the Kansas State Employee Health Plan was unlawfully impaired or denied in

November of 2014. All four of these plaintiffs have now testified that the requested change

would be of no financial benefit to them. They identify no federal law that would require a state

government employer to supply any particular sort of health insurance benefits or mandate any

particular class of beneficiaries for the coverage.

Eligibility for health insurance benefits under the Kansas State Employee Health Plan is

controlled by K.A.R. 108-1-1, amended effective January 2, 2015, which states in pertinent part:


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(g) Eligible dependent participants.(1) Any person enrolled in the health care benefits program as a primary participant mayenroll the following dependents, subject to the same conditions and limitations that applyto the primary participant:(A) The primary participant's lawful wife or husband, asrecognized by Kansas law and subject to the documentation requirements of the

commission or its designee;

The regulation states only that a wife or husband’s status is to be determined by Kansas law and

proved by documentation acceptable to the agency. It does not state whether same sex marriages

are to be recognized under Kansas law or not.

Assuming arguendo that allegations of disparate treatment of similarly situated insurance

applicants can be read into these allegations, they would not give rise to an equal protection

violation. In the context of insurance coverage, even apparently arbitrary distinctions among

classes of potential beneficiaries are not considered per se irrational or arbitrary, and similar laws

have repeatedly been held to pass constitutional scrutiny. See for example Weinberger v. Salf i ,

422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); Cali fano v. Boles , 443 U.S. 282, 99 S.

Ct. 2767, 61 L. Ed. 2d 541 (1979); Astrue v. Capato ex rel. B.N.C., __U.S.__, 132 S. Ct. 2021,

182 L. Ed. 2d 887, (2012); Johnson v. Cali fano , 656 F.2d 569 (10th Cir. 1981).

Ultimately the Court will have to decide whether it has jurisdiction to order the State of

Kansas to use taxpayer funds to pay these plaintiffs’ medical expenses. The plaintiffs have

testified that they want their bills paid, they don’t want mere declaratory relief in the abstract.

Since there is no jurisdiction to order this relief consistent with the Eleventh Amendment, the

motion for summary judgment cannot grant these plaintiffs the remedy they seek.

The motion assumes without argument or factual support that every Kansan except

homosexuals has the right to change his or her name to anything at all just by endorsing the new

name on a marriage certificate. This is a mistaken conclusion both as a matter of law and as a


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matter of fact. Plaintiffs Fowler and Braun allege that defendants Jordan and Kaspar refuse to let

them rely on Illinois marriage papers to accomplish a name change. But again there is no

evidence offered that a heterosexual couple from Illinois would be treated differently under

Kansas law. K.S.A. 2014 Supp. 23-2506 plainly limits the procedure they sought to invoke for

change of name to marriages performed in the State of Kansas pursuant to K.S.A. 2014 Supp.

23-2511. No unequal application of the law is threatened with regard to Fowler and Braun.

Plaintiffs Bohnenblust and Hickman allege that they were not allowed to restore their

premarital surnames appearing on their respective birth certificates by presenting a marriage

license that purported to legitimize those changes. But they do not establish that a heterosexual

couple would have been permitted to achieve name restoration in this manner. The statute relied

upon, K.S.A. 2014 Supp. 23-2506, only permits certain new names to be approved, and does not

authorize restoration of a former name using this method. No unequal treatment of similarly

situated persons occurs in the application of these laws.

2.

THERE IS NO CASE OR CONTROVERSY, AND PLAINTIFFS LACK

STANDING TO PURSUE GENERAL RELIEF FOR EVERY HOMOSEXUAL

COUPLE IN KANSAS.

The court would be doing plaintiffs a favor by dismissing this lawsuit without prejudice

for lack of standing and absence of a case or controversy. This lawsuit was filed in haste on

behalf of four plaintiffs who did not really want to take advantage of the relief the Court has

granted to them. Whatever grievance these four plaintiffs may have considered pursuing in

October of 2014 is no longer a live controversy because Kansas court clerks have been issuing

same sex marriage licenses since mid November of 2014 with the blessing of the Kansas

Supreme Court. The six additional plaintiffs were not selected wisely, and have no justiciable


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federal grievances to state either. Perhaps if other plaintiffs with real claims decide to sue other

defendants, the declaratory relief might still be available to those potential plaintiffs, depending

upon what happens in the United States Supreme Court this spring. But continued insistence on

pressing a lawsuit pursuing misguided claims challenging inoffensive state practices is likely to

result in nothing more than a waste of effort for all concerned.

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. See Ex parte Young,

209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). When a claim for injunctive relief is brought

against a state official who is not involved in the enforcement of an allegedly unconstitutional

statute, Eleventh Amendment immunity applies and requires dismissal of the claim. See Peterson

v. Martinez , 707 F.3d 1197, 1205-1206 (10th Cir. 2013).

A federal court has no power to answer abstract questions posed by litigants who have no

personal stake in the interpretation or application of a challenged law. Jurisdictional limits

imposed by Article III require that a plaintiff present a case or controversy that the parties have

standing to litigate. “To establish Article III standing, an injury must be concrete, particularized,

and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable

ruling.” See Clapper v. Amnesty I ntern. USA, __US__, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264

(2013):

To establish Article III standing, an injury must be “concrete, particularized, and actual

or imminent; fairly traceable to the challenged action; and redressable by a favorableruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, –––– , 130 S.Ct. 2743,2752, 177 L.Ed.2d 461 (2010); see also Summers, supra, at 493, 129 S.Ct. 1142; Defenders of Wildlife, 504 U.S., at 560 –561, 112 S.Ct. 2130. “Although imminence isconcededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which


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is to ensure that the alleged injury is not too speculative for Article III purposes — that theinjury is certainly impending.” Id., at 565, n. 2, 112 S.Ct. 2130 (internal quotation marks

omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainlyimpending to constitute injury in fact,” and that “[a]llegations of possible future injury”

are not sufficient. Whitmore, 495 U.S., at 158, 110 S.Ct. 1717 (emphasis added; internal

quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3,112 S.Ct. 2130; see DaimlerChrysler Corp., supra, at 345, 126 S.Ct. 1854; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct.693, 145 L.Ed.2d 610 (2000); Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct.2301, 60 L.Ed.2d 895 (1979). (Clapper , 133 S.Ct at p. 1147)

See also Summers v. Earth I sland I nstitute , 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1

(2009); Lujan v. Defenders of Wildli fe , 504 U.S. 555, 112 S.Ct. 2130, 34 ERC 1785, 119

L.Ed.2d 351 (1992); City of Los Angeles v. Lyons , 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675

(1983). The American Civil Liberties Union has not filed suit in its own name, and has instead

chosen to provide legal representation to ten persons who do not have individual standing to

obtain the relief that the lawyers seem sure that the Court would grant to other same sex couples

who are not parties. Assuming some of these ten plaintiffs could possibly establish standing to

challenge what is left of the federal Defense of Marriage Act, that claim has been forfeited for no

apparent reason, and is not in issue in this litigation.

Plaintiffs lack standing to sue Secretary Mosier, 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. Smi th , 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, she has insufficient

involvement in the issuance of marriage licenses to be a defendant amenable to suit under the

Eleventh Amendment. See Peterson v. Marti nez , 707 F.3d 1197 (10th Cir. 2013) and American


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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. Neither is the Kansas State Employees Health Care Commission subordinate to

KDHE. Plaintiffs’ own affidavits establish that KDHE is handling same-sex marriage certificates

routinely as vital statistics records.

Defendants Kaspar and Jordan are also not proper defendants in this litigation, which can

involve only the legal rights and grievances of these ten plaintiffs. No federal question has been

presented with respect to driver licensing, and the Court has no subject matter jurisdiction to

entertain a challenge to the tax assessment methods employed by the Kansas Department of

Revenue. See Direct M ktg. Ass'n v. Brohl , No. 13-1032, 2015 WL 867663 (U.S. Mar. 3, 2015).

Because the only plaintiffs who complain about income taxation have filed their federal returns

separately rather than jointly, there is no grievance against Secretary Jordan to litigate on that

account. No cognizable federal question is raised with respect to driver licensing, whether the

claim is directed at defendant Kaspar or at Secretary Jordan.

The Eleventh Amendment would restrict any otherwise proper litigation to prospective

declaratory and injunctive relief that is not merely a disguised demand for payments out of the

state treasury. 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. See Devon Energy Production

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