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IN THE UNITED STATED 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-TJJ

v. )

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

as Secretary of the Kansas Department of )

Health and Environment and )

DOUGLAS A. HAMILTON, in his official )Capacity as Clerk of the District Court for the 7th

)

Judicial District (Douglas county), and )

BERNIE LUMBRERAS, in her official capacity )as Clerk of the District Court for the 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 Revenues Division )of Vehicles, and MIKE MICHAEL, in his official )

capacity as Director of the State Employee )

Health Plan, )Defendants. )

_________________________________________)

MOTION OF DEFENDANT MOSER TO

DISMISS AMENDED COMPLAINT

Defendant Robert Moser, M.D. hereby moves for dismissal of all claims against him

based on lack of subject matter jurisdiction, including Eleventh Amendment immunity, lack of an

Article III case or controversy, and mootness.

1. Dr. Moser has resigned his position as Secretary of the Kansas Department of Health

and Environment, effective November 30, 2014. Because he no longer holds any

official position with the agency that supplies marriage-related forms to Kansas

1

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district courts, the relief sought against him is unavailable as a matter of law.

2. New gender-neutral forms have already been distributed by KDHE to Kansas district

courts for use by same-sex marriage applicants. Prospective injunctive relief is

therefore unavailable against Dr. Mosers successor.

3. For the reasons set forth in the motion to dismiss filed on behalf of the defendant

court clerks, the plaintiffs who seek relief against Dr. Moser lack Article III standing

to litigate the issues they raise. These plaintiffs have not taken advantage of their

opportunity to marry one another, despite the fact that the courts where they applied

for marriage licenses before filing suit are now accepting same-sex applications. Any

supposed controversy between these plaintiffs and any of the defendants is therefore a

sham. If these plaintiffs have taken advantage of the availability of the marriage

process in other counties, then their claims have become moot because they are no

longer unmarried persons.

4. Attached hereto are affidavits from the defendant court clerks, Dr. Moser, and Deputy

Chief Counsel Tim Keck setting forth the factual basis for the above defenses.

ARGUMENT AND AUTHORITIES

1. ELEVENTH AMENDMENT IMMUNITY

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.

SeeDevon Energy Production Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201

(10th

Cir. 2012);Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct.

1673, 1675, 128 L.Ed.2d 391 (1994). Invocation of the remedy of declaratory judgment does not

itself provide a basis for federal jurisdiction. See Cardtoons, L.C. v. Major League Baseball

2


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Players Ass'n, 95 F.3d 959, 964 (10th

Cir.1996).

A factual attack on the Courts jurisdiction is appropriately made in the form of a motion

to dismiss, even though matters outside the complaint are relied upon. When a factual attack is

made against the Courts subject matter jurisdiction, the Court is not required to assume the truth

of the complaints factual allegations. SeeRural Water Dist. No. 2 v. City of Glenpool, 698 F.3d

1270, 1272 (10th

Cir. 2012).

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. SeeEx parte Young,

209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). No such prospective injunctive relief can be

obtained against Dr. Moser. 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. SeePeterson v. Martinez, 707

F.3d 1197, 1205-1206 (10th

Cir. 2013).

2.

NO CASE OR CONTROVERSY

Dr. Moser no longer has any official capacity relating to the preparation and distribution

of Kansas marriage forms. If plaintiffs seek to amend to sue him in his individual capacity for

past acts, he will be protected by qualified immunity. See Guttman v. Khalsa, 669 F.3d 1101

(10th

Cir. 2012). Declaratory relief is not appropriate against him in these proceedings, because

plaintiffs have repeatedly claimed (and the Court has apparently agreed) that existing precedents

of the Tenth Circuit Court of Appeals control the outcome. As a general rule, where a law has

been declared unconstitutional by a controlling court, pending requests for identical declaratory

relief become moot. SeeBishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1269 (N.D. Okla.)

3


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aff'd sub nom.Bishop v. Smith, 760 F.3d 1070 (10th

Cir. 2014) cert. denied, 135 S. Ct. 271 (2014)

The sole claims now asserted against Dr. Moser are made by the original Plaintiffs, Marie,

Brown, Wilks and DiTrani. The allegations in the Complaint that they are being prevented from

seeking or receiving a license by these Clerks is demonstrably false, and is an apparent attempt

to create federal jurisdiction where none exists. The claim that any Kansas district court clerk is

acting under orders from Dr. Moser or any other KDHE executive director in deciding whether to

issue a marriage license to same-sex applicants is also a demonstrably incorrect statement of

Kansas law.

3. MOOTNESS

No Kansas statute requires the use of marriage-related forms that make explicit reference

to the sex of the applicants for a marriage license. Dr. Moser clearly had the discretion under

Kansas law to distribute gender-neutral forms, and he exercised that discretion shortly before he

left office. There is no reason to assume that his successors will recall the new forms. To the

extent that Dr. Moser was ever a proper party (a dubious conclusion at best) he certainly is not

now, nor would his successor be a proper party. Whatever supposed controversy may have

existed between plaintiffs and Dr. Moser is therefore undeniably moot.

Plaintiffs are not allowed to continue litigating a moot case just because they seek

declaratory relief:

[W]hat makes a declaratory judgment action a proper judicial resolution of a case or

controversy rather than an advisory opinion is the settling of some dispute which affects

the behavior of the defendant toward the plaintiff.Rio Grande Silvery Minnow, 601 F.3dat 110910. The crucial question is whether granting a present determination of the

issues offered will have some effect in the real world. Id. at 1110 (internal citation

omitted); see also Rezaq, 677 F.3d at 1008 ([I]n the context of an action for declaratory

relief, a plaintiff must be seeking more than a retrospective opinion that he was wronglyharmed by the defendant.); Wirsching, 360 F.3d at 1196 (same).

* * *

4


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[T]he possibility of recovering attorney fees or costs is not a sufficient reason to

enter judgment in an otherwise moot case. SeeR.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d

1103, 1108 (10th Cir.2007) (explaining that a claim of entitlement to attorney fees doesnot preserve a moot cause of action);In re West. Pac. Airlines, Inc., 181 F.3d 1191, 1196

(10th Cir.1999) (Precedent clearly indicates that an interest in attorney's fees is

insufficient to create an Article III case or controversy where a case or controversy doesnot exist on the merits of the underlying claim.). SeeBishop v. U.S. ex rel. Holder, 962

F. Supp. 2d 1252, 1269, 1271, (N.D. Okla.) aff'd sub nom. Bishop v. Smith, 760 F.3d

1070 (10th

Cir. 2014) cert. denied, 135 S. Ct. 271 (2014).

As the affidavits submitted by all defendants confirm, there was never any genuine grievance

involving Dr. Moser, whose role was not to enforce Kansas marriage laws by preventing district

court judges and clerks from accepting applications for same-sex marriages. The Court is not

obligated to entertain the fanciful view of Kansas marriage law set forth in the amended

complaint when the laws themselves and the persons involved in enforcing them plainly state

otherwise.

CONCLUSION

For all of the above stated reasons Dr. Moser should be dismissed from this litigation for

lack of subject matter jurisdiction under the Eleventh Amendment, lack of Article III standing,

and mootness of the supposed controversy.

Respectfully submitted,

OFFICE OF THE ATTORNEY GENERALDEREKSCHMIDT

s/Steve R. Fabert

Steve R. Fabert, #10355Assistant Attorney General

120 S.W. 10th Avenue

Topeka, Kansas 66612-1597

Tel: (785) 368-8420Fax: (785) 296-6296

Email: [email protected] for Defendant Moser

5

mailto:[email protected]:[email protected]:[email protected]

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CERTIFICATE OF SERVICE

This is to certify that on this 18th

day of November, 2014, a true and correct copy of the

above and foregoing Answer was filed by electronic means via the Courts electronic filing sys-tem which serves a copy upon Plaintiffs counsel of record, Stephen Douglas Bonney, ACLU

Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and Mark P. Johnson, Dentons

US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111,[email protected]

[email protected] and Joshua A. Block, American Civil Liberties Foundation, 125Broad Street, 18

th Floor, New York, NY 100004,[email protected].

s/Steve R. FabertSteve R. Fabert

Attorney for Defendant Moser

6

mailto:[email protected]:[email protected]:[email protected]:Mark.johnson@dentonsmailto:Mark.johnson@dentonsmailto:[email protected]:[email protected]:[email protected]:[email protected]:Mark.johnson@dentonsmailto:[email protected]

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Address: City/State: Zip:

Email:

Self Father Paternal Uncle

Mother Brother Maternal Uncle

Sister Son Paternal Aunt

Current Spouse Daughter Maternal Aunt

arty ADate of Birth:

heck one: Bride______ Groom______ Spouse _______

arty

Date of Birth:

Check one: Bride______ Groom______ Spouse _______

$Total:

1)

2)

3)

4)

5)

City that Marriage took place:

Name of Record:MO/DAY/YEAR

Date of Marriage:

County that issued license:

FIRST MIDDLE LAST(maiden or previous married surname )

FIRST MIDDLE LAST

MONTH DAY YEAR

COUNTY STATE(MUST BE KANSAS)

MO/DAY/YEAR

Today's Date:

Maternal Grandparent

Other (specify)

Phone Number:

Application for Certified Copy of Kansas Marriage Certificate

This request form mustbe completed.

Enclose a copy of both front and back of a current legal photo ID (see back for list of acceptable ID

*Requirements-Read before turning in application

* IF THE CERTIFICATE IS NOT LOCATED, A $15.00 FEE MUST BE RETAINED BY THIS DEPARTMENT FOR THE RECORD SEARCH.

Make checks or money orders payable to Kansas Vital Statistics. For your protection, do not send cash.

FeesK.A.R. 28-17-6 requires the following fee(s).

The correct fee must be submitted with the request. The fee for certified copies of birth certificates is $15.00 for one certified copy and $15.0

each additional certified copy of the same record ordered at the same time. This fee allows a 5-year search of the records, including the ye

indicated plus two years before and two years after, or you may indicate the consecutive 5-year period you want searched. You may specify m

than one 5-year span, but each search will cost $15.00.

Marriage Information

(person requesting the certificate)

Name of Requestor:

Requestor's Signature:

Paternal Grandparent

Legal Guardian(submit custody order)

*IMPORTANT: The person requesting the vital record mustsubmit a copy of their identification. See list on reverse side.

Requestor's relationship to person on the Certificate? (Check one)

Reason for Request (PLEASE BE SPECIFIC):

Name of Record:

Walk-in Hours:

Phone: 785-296-1400Topeka, KS 66612-2221Monday-Friday9:00a.m.-4:00 p.m. 1000 SW Jackson Suite 120

* PLEASE NOTE MARRIAGE CERTIFICATES ARE ON FILE FROM May 1, 1913 TO PRESENT

*Request will be returned if the above steps are not completed correctly.

Enclose appropriate fees

Person requestingto receive a birth certificate must sign above.

If submitting by mail, enclose a self-addressed stamped envelope

$15 per Certified Copy

Office hours:(live phones)Kansas Office of Vital Statistics

Number of Copies Ordered:

Mon-Fri 8:00a.m.-5:00 p.m.

Form VS-237 rev 11


0.00

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Bureau of Indian Affairs Tribal ID card of Requestor

Inmate ID of Requestor(along with a memo completed and signed by a counselor or parole officer)

Niece/Nephew

Who's Eligible to Obtain Most Certificates: Must provide ID and proof of direct intRequestor's current ID required To Get a Certificate:

EligibilityONE form of Primary Documentation required from list below

Utility Bill with current address of Requestor and company letterhead with company name and address; not handwritten

Current Pay Stub (must include your name, social security number plus name and address of business; not handwritten)

Social Security card (must be signed by card holder)

Bank Statement with Requestor's current address

Car Registration or Title with Requestor's current address

* PLEASE NOTE MATRICULAS ARE NOT AN ACCEPTABLE FORM OF

D

If legal guardianship has been established through the courts, please provid

copy of the guardianship papers.

Resident Alien card

SiblingsRefugee Travel Document

Certificate of Naturalization (with intact photo)Concealed Carry handgun license

Mustbe age 18 or older

VA Card (with intact photo)

If you do not have a government issued photo ID, you must send photocopies of any two of the following: *Photocopies must

of the complete document, able to be read and be the Requestor's with current addressTemporary Driver's License

) FEES EXPIRE 12 MONTHS FROM THE DATE OF THE REQUEST.

) MULTIPLE REQUESTS FOR DIFFERENT RECORDS MAY BE HANDLED AND MAILED SEPARATELY.

WARNING: COPYING, ALTERING, or FRAUDULENT ACTIVITY PROHIBITED

Except as authorized by the Uniform Vital Statistics Act, no person shall prepare or issue any certificate (vital record) which purports to be a

original, certified copy or abstract or copy of a certificate [K.S.A. 652422d.(g)]. Vital records identity theft related to obtaining certificates

making, counterfeiting, altering, amending any certified copy of a vital record with the intent to sell or obtain for any purpose of deception a certi

copy of a vital record is a severity level 8, nonperson felony. [K.S.A. 21-3830a (d) and K.S.A 21-3830a (e)].

Letter from employer (with Requestor's current address)

U.S. Voters registration card of Requestor

Filed Income Tax of Requestor with current address

Letter to Requestor from Social Service Agency/Health Department or other government agency with current address

Hospital or Health agency bill (with current address) of Requestor

Court Documents of Requestor

W-2 from Employer (with Requestor's current address)

Read: IMPORTANT MISCELLANEOUS INFORMATION

Valid insurance card or policy of Requestor

Valid health insurance card or policy of Requestor

Parole document (book sheet) of Requestor

By State law, vital records filed with this office are not open for public inspec

and the requestor must meet eligibility requirements -- must be named on

record, an immediate family member, or someone who can provide legal pr

the record is necessary for the determination of personal or property right

[K.S.A. 65-2422d]

Parents

Please make a copy of one of the following documents and send

with the application. All documents MUST be signed, current

nd valid. All Identification must have both sides and be able to

be read.

Voter's registration card (Countries outside of the U.S.)

Aunts/Uncles

Photocopy of Government Issued Driver's License, Military ID,

tate ID card, Valid Passport and Visa's. (Not the credit/debit

ard)

Permanent resident card

Alien registration receipt card

Employment authorization card

Re-entry permit

Current Spouse

Adult Children

Grandparents

Detailed Information

Identification


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VS244 Rev. 11/12/2014 Page 1 of 2

KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENTOffice of Vital Statistics

Worksheet for Marriage Registration

This worksheet is to be completed by the couple and returned to the district court before the marriage license can be issued. This information will be used tocomplete the official marriage license form.

License number(court use only) _________________________

PARTY A: Check One: Groom Bride Spouse (This is the label that will appear on the marriage license.)

1. LEGAL NAMEFIRST MIDDLE LAST SUFFIX

2. LAST NAME PRIOR TO FIRST MARRIAGE (If different) 3. DATE OF BIRTH (Month, Day, Year) 4. BIRTHPLACE (State or Foreign Country)

5. RESIDENCESTATE OR FOREIGN COUNTRY 6. COUNTY OR PROVINCE 7. CITY OR TOWN

8. FATHER/PARENT NAMEPRIOR TO FIRST MARRIAGE(First, Middle, Last)

9. BIRTHPLACE (State orForeign Country)

10. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)


PARTY B: Check One: Groom Bride Spouse (This is the label that will appear on the marriage license.)12. LEGAL NAME- FIRST MIDDLE LAST SUFFIX


16. RESIDENCESTATE OR FOREIGN COUNTRY 17. COUNTY OR PROVINCE 18. CITY OR TOWN

19. FATHER/PARENT NAMEPRIOR TO FIRST MARRIAGE(First, Middle, Last)




If one or both applicants are under 18, this information is required:

24a. PARTY A - MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable) 24c. PARTY B - MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable)

24b. PARTY A - FATHER/PARENT OR GUARDIAN CONSENTING (If applicable) 24d. PARTY B - FATHER/PARENT OR GUARDIAN CONSENTING (If applicable)

24e. HAVE ALL LIVING PARENT(S) OR GUARDIAN(S) CONSENTED?

PARTY A

Yes No Emancipated Parent(s) Deceased

PARTY B

Yes No Emancipated Parent(s) Deceased

24f. NAME OF CONSENTING JUDGE (If applicable)(Court use only)

The ceremony is expected to be performed by:

25. NAME OF PERSON PERFORMING CEREMONY (Please type or print) 26. TITLE

27. ADDRESS OF PERSON PERFORMING CEREMONY (Street and No. or Rural Route, City or Town, State, Zip Code)

This section is to be completed if either party desires to designate a new legal name at the time of marriage.

28. PARTY A: NAME- FIRST MIDDLE LAST

29. PARTY B: NAME- FIRST MIDDLE LAST

COMPLETE ADDITIONAL INFORMATION ON BACK AND PROVIDE SIGNATURE


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Page 2 of 2

This information is strictly confidential and is not released in identifiable form.30. NUMBER OF THIS MARRIAGE First, Second,

etc. (Specify below)31. IF PREVIOUSLY MARRIED, LAST MARRIAGE ENDED

SOCIAL SECURITY NUMBERSBy Death, Divorce, or Annulment (Specify below) Date (Month, Day, Year)

30a. PARTY A 31a. PARTY A 31b PARTY A 32. PARTY A - SOCIAL SECURITY NUMBER

30b. PARTY B 31c. PARTY B 31d. PARTY B 33. PARTY B - SOCIAL SECURITY NUMBER

34. COUPLES HISPANIC ORIGIN (Check the box or boxes thatbest describes whether you are Spanish, Hispanic, or Latino.Check the no box if you are not Spanish, Hispanic or Latino.)

35. COUPLES RACE (Check one or more boxes to indicate what race(s) you consider yourself to be.)

35a. PARTY A

White Korean

Blackor VietnameseAfrican American

American Indian or Other Asian (Specify)Alaska Native(Name of the enrolledor principal tribes)

Native Hawaiian

Asian Indian Guamanian or Chamorro

Chinese Samoan

Filipino Other Pacific Islander(Specify)

Japanese

Other (Specify)

Unknown

35b. PARTY B

White Korean

Blackor VietnameseAfrican American

American Indian or Other Asian (Specify)Alaska Native(Name of the enrolledor principal tribes)

Native Hawaiian

Asian Indian Guamanian or Chamorro

Chinese Samoan

Filipino Other Pacific Islander(Specify)

Japanese

Other (Specify)

Unknown

34a. PARTY A

No, not Spanish/Hispanic/Latino

Yes, Mexican/MexicanAmerican/Chicano

Yes, Puerto Rican Yes, Cuban Yes, Central American Yes, South American Yes, other Spanish/

Hispanic/Latino

(Specify)

Unknown

34b. PARTY B

No, not Spanish/Hispanic/Latina

Yes, Mexican/MexicanAmerican/Chicana

Yes, Puerto Rican Yes, Cuban Yes, Central American Yes, South American Yes, other Spanish/

Hispanic/Latina

(Specify)

Unknown

36. EDUCATION (Check the box that best describes the highest degree or level of school completed.)

36a. PARTY A - EDUCATION 8thgrade or less 9th- 12thgrade; no diploma High school graduate or GEDSome College credit, but no degree Associate degree (e.g., AA,AS) Bachelors degree (e.g., BA, AB, BS)

Unknown Masters degree (e.g., MA, MS, MEng, MEd, MSW, MBA) Doctorate (e.g., PhD, EdD) or Professional degree (e.g., MD, DDS, DVM, LLB, JD)36b. PARTY B - EDUCATION 8thgrade or less 9th- 12thgrade; no diploma High school graduate or GED

Some College credit, but no degree Associate degree (e.g., AA,AS) Bachelors degree (e.g., BA, AB, BS) Unknown Masters degree (e.g., MA, MS, MEng, MEd, MSW, MBA) Doctorate (e.g., PhD, EdD) or Professional degree (e.g., MD, DDS, DVM, LLB, JD)

PARTY AGENDER

Male Female

PARTY BGENDER

Male Female

The information provided by:

PARTY ASIGNATURE

The information provided by:

PARTY B SIGNATURE

Party A Current Address and Daytime Telephone Number Party B Current Address and Daytime Telephone Number


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VS229 SML Rev. 11/12/2014

STATE OF KANSASDEPARTMENT OF HEALTH AND ENVIRONMENT

Office of Vital Statistics

Marriage LicenseState File number

1. LEGALNAME FIRST MIDDLE LAST/SUFFIX

2. LAST NAME PRIOR TO FIRST MARRIAGE (If different) 3.DATE OF BIRTH (Month, Day, Year) RESIDENCE STATEOR FOREIGN COUNTRY

4. BIRTHPLACE (State or Foreign Country)

5. RESIDENCE STATE OR FOREIGN COUNTRY 6. COUNTY OR PROVINCE 7. CITY OR TOWN

8. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)




12. LEGAL NAME- FIRST MIDDLE LAST/SUFFIX


16. RESIDENCE STATE OR FOREIGN COUNTRY 17. COUNTY OR PROVINCE 18. CITY OR TOWN

19. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)




23a. MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print) 23c. MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)

23b. FATHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print) 23d. FATHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)

23e. HAVE ALL LIVING PARENT(S) OR GUARDIAN(S) CONSENTED?

Yes No Emancipated Parent(s) Deceased YesNo Emancipated Parent(s) Deceased

23f. NAME OF CONSENTING JUDGE (If applicable, please type or print)

Completed marriage license is to be returned to Issuing District Court within 10 days after marriage:

24. DISTRICT COURT OF ISSUANCE 25. DATE LICENSE ISSUED (Month, Day, Year) 26. EXPIRATION DATE (Month, Day, Year)

27. ISSUING OFFICIAL 28. TITLE OF ISSUING OFFICIAL 29. DATE RECEIVED BY COURT OFFICIAL

This License Authorizes the Marriage in This State of the Parties Named Above By Any Person Duly Authorized to Perform a Marriage Ceremony Under the Laws of the State of Kansas.

30. I CERTIFY THAT THE ABOVE NAMED PERSONSWERE MARRIED ON: (Month, Day, Year)

31. WHERE MARRIED COUNTY 32. CITY OR TOWN

33. SIGNATURE OF PERSON PERFORMING CEREMONY 34. NAME AND PHONE NO. OF PERSON PERFORMING CEREMONY (Please type or print) 35. TITLE

36. ADDRESS OF PERSON PERFORMING CEREMONY (Street and No. or Rural Route, City or Town, State, Zip Code)

37. WITNESS NAME TO CEREMONY (Print or Type) 38. WITNESS NAME TO CEREMONY (Print or Type)

Designated new l egal name pursuant to K.S.A. 23-2506. (If applicable)

38. NAME FIRST MIDDLE LAST

39. NAME FIRST MIDDLE LAST


GROOM

BRIDE

GROOM

GROOM

BRIDE

BRIDE

GROOM BRIDE

GROOM

BRIDE

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AFFIDAVIT OF BERNIE LUMBRERAS

STATE OF KANSAS

)

) ss:

COUNTY OF SEDGWICK )

I,

Bernie Lumbreras, being first duly sworn, on oath, depose and say that:

1. I am the Clerk o the District Court o Sedgwick County, Kansas, Eighteenth

Judicial District. I was appointed to this position on December 18, 2005. In that

capacity, I supervise deputy clerks in performing the functions imposed by law

on clerks o the district court in Kansas. My deputy clerks and I are judicial

officers o the State o Kansas and are employed by the State o Kansas as part o

the Kansas Judicial Branch.

2.

As clerks o the court, we perform our duties in accordance with legal

requirements as per K.S.A. 20-3102 and as communicated to us under the

supervision

o

the Chief Judge, at this point, Chief Judge James R. Fleetwood.

3.

One o the functions o my office is to issue marriage licenses as per K.S.A.

2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may

be issued by either judges or clerks. In performing this function, I and the clerks

operating under my supervision act as an aide to the twenty-eight (28) judges o

the 18th Judicial District who would otherwise be performing this function.

4. there is a question about whether a person is legally entitled to a marriage

license, the applicant is referred to a judge for determination.

5.

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

certified copy o which is attached as Exhibit A hereto. In that Order, Judge

Fleetwood directs the Clerks to issue marriage licenses without consideration o

gender o the applicants.

6. According to records maintained in my office, the Plaintiffs in this case, Kerry

Wilks and Donna DiTrani, applied for a marriage license on October 9,2014.

We did take the application on that date. We keep applications on file for one

year.

7. To date, neither Wilks nor DiTrani have returned to the Clerk's Office to submit

a completed worksheet

or

to request issuance o a marriage license.


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8. My Office has no record of ail Marie

or

Michelle L Brown having appeared in

my office to apply for a marriage license.

9.

Except for recognized holidays, my Office is open for business, induding but not

limited to accepting applications for marriage licenses and issuing licenses, every

week day from 8 a.m. to 4 p.m.

FURTHER AFFIANT SAITH NOT.

Bernie Lumbreras

Subscribed and Sworn to before the undersigned this

of

December,

2014.

NOTARY

PUBLIC

State of

Kansas

TINA L HARRIS N

= y Appt Expires I k ~ ~ J

_

Notary Public

My Appointment Expires:

/1

/10/ ;101 ;;-

I I

2


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IN TH UNITED STATED DISTRICT COURT

FOR TH DISTRICT OF KANSAS

KAIL MARIE and MICHELLE

L.

BROWN,

and KERRY WILKS, Ph.D., and DONNA

)

DITRANI,

)

Plaintiffs,

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

v.

)

)

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

as Secretary of the Kansas Department of

)

Health and Environment and

)

DOUGLAS A HAMILTON, in his official

Capacity as Clerk

of

the District Court for the

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),

)

Defendants.

)

)

AFFIDAVIT

OF

BERNIE LUMBRERAS

STATE OF KANSAS

) ss:

COUNTY OF SEDGWICK

)

I, Bernie Lumbreras, being first duly sworn, on oath, depose and say that:

1.

I am the Clerk of the District Court

of

Sedgwick County, Kansas, Eighteenth

Judicial District. I was appointed to this position on December 18, 2005. In that

capacity, I supervise deputy clerks in performing the functions imposed by law

on clerks of the district court in Kansas. My deputy clerks and I are judicial

officers of the State of Kansas and are employed

by

the State

of

Kansas as part

of

the Kansas Judicial Branch.

2. Neither I nor the clerks operating under my supervision discriminate against any

person or operate under any sort ofpersonal beliefor animus. We perform our

duties in accordance with legal requirements as per K.S.A. 20-3102 and as

1


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communicated to us under the supervision

of

the

Chief

Judge, at this point,

Chief

Judge James R. Fleetwood.

3. One

of

the functions

of

my office is to issue marriage licenses as per K.S.A.

2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may

be issued by either judges

or

clerks. In performing this function, I and the clerks

operating under my supervision act as an aide to the twenty-eight (28) judges

of

the 18th Judicial District who would otherwise be performing this function.

4. there is a question about whether a person is legally entitled to a marriage

license, the applicant is referred to a judge for determination.

5.

I do not authorize persons to perform marriage rites; the Clerks have no role in

the function set forth in K.S.A. 2014 Supp. 23-2504.

6. Any determination as to the issuance

of

a license to Kerry Wilks

or

Donna

DiTrani was made

by Chief

Judge James R Fleetwood or Judge Eric Yost acting

in

Chief

Judge Fleetwood's absence. t was not made by me

or

by

my

clerks.

7. My office is also in compliance with the Supreme Court s October

10,2014,

Order in State ex rei Schmidt

v

Moriarty which is consistent with the directions

of Chief

Judge Fleetwood.

8. Neither I nor my clerks have any role in deciding whether a person is authorized

to file a joint tax return in Kansas.

9. Neither I nor

my

clerks have any role in determining whether a person is entitled

to inherit property through intestate succession in Kansas.

FURTHER AFFIANT SAITH NOT.

Bernie Lumbreras

9

Subscribed and Sworn to before the undersigned this

0

-

day

of

October, 2014.

C ~ a d

o

ubc

My Appointment Expires:

:? -/-18

CATHY STEPPPRATT

NOTARY PUBLIC

STATE OF KANSAS

My Appl Exp . .3

1 18

2


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-

4MV 6 8

. ~ - f L 9 . ./\

18

th

A P P 8 ~ t ( l l 1 Rm ff '

JUDICIAL DISTRICT

ADMINISTRATIVE ORDER It { - t : s

lll

OY

3 A

II: 25

Now

on

this

13

th

day

o

November. 2014 the matter comes before

.

Judge of the 18

th

Judicial District. concerning the issuance of same sex

n f : r r i a g ~ niJ

licenses. As Chief Judge it is recognized that a suit naming

the

clerk of the 18

th

judicial

district

as a party has been brought in the United States District Court for the District of

Kansas

challenging the constitutionality Article 15 Section

16

o the Kansas

Constitution that prohibits

the

issuance of

same sex

marriage licenses

in

the State of

Kansas.

Said legal action

is

known as

ail

Marie

et

aI v.

Robert Moser

et

al.

In

Kail

Marie

the United States District Court issued an injunction prohibiting the

Clerk of the Court o Douglass

and

Sedgwick County, Kansas from denying the

marriage applications of same sex couples. Central

to

the court's ruling was a finding

that the continual denial of said license

was

a violation of the United States Constitution

because it resulted in discrimination and a violation of the equal protection clause of the

constitution.

Appeal

from

this order

was

taken to

the

10

th

Circuit Court of Appeals. A panel of

the

10

th

Circuit Court of Appeals affirmed

the

action of the District Court. This issue was

then

appealed to

the

United

States Supreme

Court.

By a

vote

o seven to

two

The

United

States Supreme Court

refused

to grant a further stay of the original order

prohibiting the issuance of same sex marriage licenses

in the

State of Kansas. The

order of

the

United States Supreme Court directs the State of Kansas

and

parties

to

the

Kail Marie

lawsuit to issue marriage licenses to same sex couples.


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Therefore the clerk of the court

and

her staff are hereby ordered

and

directed to

issue

marriage licenses without consideration of gender of the applicants in accordance

with the order of the United States Supreme Court and to otherwise comply with

all

other requirements related to issuing

said

marriage licenses generally.

IT IS

SO ORDERED


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