2:14-cv-02518 #99

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. ) ) 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. ) _________________________________________ )

REPLY IN SUPPORT OF MOTION OF DEFENDANTS MOSIER, JORDAN, KASPAR, AND MICHAEL FOR ADDITIONAL TIME TO RESPOND TO PLAINTIFFS’ MOTION

FOR SUMMARY JUDGMENT

Defendants Susan Mosier, Nick Jordan, Lisa Kaspar, and Mike Michael, named in their

respective official capacities, have moved on multiple grounds for additional time to respond to

plaintiffs’ motion for summary judgment. Plaintiffs have filed a hasty and ill-considered

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Case 2:14-cv-02518-DDC-TJJ Document 99 Filed 03/04/15 of 4

response to the request for an extension (document 98) that misconstrues the motion and

therefore ignores much of its substance. Because the response does not deny that good cause

exists for an extension of time to submit a response to the motion for summary judgment, the

request should be granted.

The motion for extension of time to respond was filed on behalf of six of the eight

defendants (the “recognition defendants”), not all of them. These defendants have not asked for a

stay of all proceedings, or for an indefinite delay of the final resolution of the case. The length of

the requested stay is not challenged, nor do plaintiffs deny that their purpose in opposing the

motion is to protect themselves from all discovery rather than obtaining a prompt resolution of

the merits of all claims made by every plaintiff.

The requested extension was not based solely upon the need to conduct discovery. It was

also based on the fact that these defendants have not yet filed their answers, and will not be

obligated to file those answers until the Court has ruled upon their pending motions to dismiss.

The response completely ignores this issue, just as the summary judgment motion ignored these

defenses. The response pretends to know what facts these defendants will admit, once they file

answers. Apparently plaintiffs construe their motion for summary judgment as a motion for

judgment on the pleadings, filed prematurely before these defendants have even filed their

answers. The defenses that have already been raised in the motions to dismiss, as well as any

other defenses identified in the answers that defendants have not yet filed, will be relevant to a

decision on the substance of the motion for summary judgment. This is an independent reason to

grant an extension of time, separate and apart from any need to conduct discovery.

If the relevant facts pertinent to the resolution of this case were as obvious as the

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response makes them out to be, then plaintiffs would have filed their motion for summary

judgment based on the stipulations that plaintiffs have abandoned, rather than their own

unsupported affidavits. Much of what is related in those affidavits is hearsay, and is not properly

considered in support of a motion for summary judgment under District Court Rule 56.1(d). See

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

Because these defendants have no assurance that the Court will disregard the hearsay affidavits,

they must present sworn testimony of their own to establish that plaintiffs are unreliable

witnesses. Contrary to the assumption underlying the response, the whole of the State of Kansas

is not a party to this lawsuit. Plaintiffs do not contend that they have had any contact at all with

the moving defendants or their subordinate employees. Unnamed employees of nonparty

agencies are no more accessible than any other nonparty witnesses.

Because plaintiffs insist on burdening the record with an unnecessary affidavit of counsel,

and only for that reason, these defendants submit the attached affidavit describing the presently

known factual issues that remain unresolved in this case and the pending discovery requests that

should allow those factual issues to be resolved.

Respectfully submitted,

OFFICE OF ATTORNEY GENERAL DEREK SCHMIDT s/ Steve R. Fabert Steve R. Fabert, #10355 Assistant Attorney General Memorial Bldg., 2nd Floor 120 SW 10th Avenue Topeka, Kansas 66612-1597 Tel: (785) 368-8420; Fax: (785) 296-6296 Email: [email protected]

Attorney for Defendants Mosier, Jordan, Kaspar and Michael

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CERTIFICATE OF SERVICE This is to certify that on this 4th day of March, 2015, a true and correct copy of the above and foregoing was filed and served via the Court’s electronic filing system upon Plaintiffs’ counsel of record, Stephen Douglas Bonney, ACLU Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111, Mark P. Johnson, Dentons US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111, [email protected] and [email protected] and Joshua A. Block, American Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004, [email protected].

s/Steve R. Fabert Steve R. Fabert Attorney for defendants Jordan, Kaspar, and Michael

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mailto:[email protected]

mailto:Mark.johnson@dentons


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. ) ) 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. ) _________________________________________ )

DECLARATION OF STEVE R. FABERT

1. I am an attorney representing some of the defendants in the above-captioned case. I

have personal knowledge of the facts below.

2. Discovery in this case has barely commenced. Although the parties discussed

proposed stipulations in January, counsel for plaintiffs ceased work on the proposed

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Case 2:14-cv-02518-DDC-TJJ Document 99-1 Filed 03/04/15 Page 1 of 3

stipulations on or about February 9, 2015 without offering an explanation to me for

the abandonment of the process.

3. My clients have not yet filed answers to the First Amended Complaint because they

have motions to dismiss still pending. Depending upon the resolution of their motions

to dismiss, additional issues may arise that will be preserved in their subsequently

filed answers, over and above the defenses and issues framed by the motion to

dismiss.

4. I personally participated in a telephone scheduling conference with the Court on

January 27, 2015 during which counsel for plaintiffs suggested that discovery should

not be allowed. The Court informed counsel in that telephone conference that

defendants would be allowed to conduct some discovery. A scheduling conference

was then set. Plaintiffs filed a motion for summary judgment prior to the scheduling

conference, without waiting for the receipt of defendants’ discovery requests.

5. Consistent with the unrecorded decision to allow discovery, a scheduling conference

was then held and a scheduling order entered. Under the terms of the scheduling order

written discovery requests were to be served on or before February 27, 2014. All

participants in the discovery conference were advised that defendants planned to

notice the depositions of each of the plaintiffs, depending upon the responses to

written discovery. Counsel for plaintiffs has not yet informed undersigned counsel of

any dates when plaintiffs can appear for their depositions.

6. Defendants contend that discovery is necessary on the issues identified in their

pending motions to dismiss and on the issues described in their pending paper

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discovery requests. Without responses to these discovery requests my clients will not

be able to fully and fairly present their defenses to the claims set out in the First

Amended Complaint. The requests were not interposed for the purpose of delay.

Copies of those requests are attached.

7. Pursuant to 28 U.S. C. 1746, I declare under penalty of perjury that the foregoing is

true and correct. Executed on March 4, 2015.

__________________________ STEVE FABERT

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

KANSAS CITY DIVISION

KAIL MARIE, et al., Plaintiffs,

v.

SUSAN MOSIER, M.D., in her official capacity as Interim Secretary of the Kansas Department of Health and Environment, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) )

Case No. 14-cv-02518-DDC/TJJ

Plaintiffs’ Responses to Defendants’ Requested Stipulations of Fact

On January 9, 2015, Defendants served requests for stipulations of fact as

permitted by the Court’s order. See Doc. 75. Plaintiffs’ now respond to the

stipulations of fact requested by Defendants as follows:

1. 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). Response: Plaintiffs do not stipulate. 28 U.S.C. § 1738C speaks for itself but has no application to this case. Plaintiffs do not concede the statute’s constitutionality. Plaintiffs do not challenge the statute in this litigation. 2. Persons who have not entered into a marriage in Kansas have no constitutional right to be afforded the legal status of married persons in Kansas. Response: Plaintiffs do not stipulate 3. No Kansas statute, rule, regulation, executive order, or action of the named defendants in this case prevents any of the plaintiffs from marrying one another at this time. Response: Plaintiffs do not stipulate. This is a conclusion of law rather than a statement of fact. Kansas’s marriage bans have not been repealed, and some district courts – including but not limited to the 25th, 28th, and 31st judicial districts – continue to enforce the bans on same-sex marriage by refusing to issue marriage


licenses to same-sex couples. Although other district courts are currently not enforcing the same-sex marriage bans, they are doing so because of the preliminary injunction entered by the Court in this case on November 4, 2014. 4. No Kansas statute, rule, regulation, executive order, or action of the named defendants in this case prevents any of the plaintiffs from receiving equal protection of the law under the 14th Amendment with respect to distinctions based on marital status. Response: Plaintiffs do not stipulate. This is a conclusion of law rather than a statement of fact. Kansas’s marriage bans have not been repealed, and some district courts – including but not limited to the 25th, 28th, and 31st judicial districts – continue to enforce the bans on same-sex marriage by refusing to issue marriage licenses to same-sex couples. But for the preliminary injunction entered by the Court in this case on November 4, 2014, Kansas law denies Plaintiffs and all same-sex couples equal protection. Moreover, Kansas’s prohibitions on recognizing the marriages of same-sex couples, which continue to be enforced, deny plaintiffs equal protection. 5. No Kansas statute, rule, regulation, executive order, or action of the named defendants in this case prevents any of the plaintiffs from obtaining insurance coverage or insurance benefits on the same terms and conditions as other persons. Response: Plaintiffs do not stipulate. Kansas’s prohibition on recognizing the marriages of same-sex couples, which continue to be enforced, prevents plaintiffs from receiving spousal health care coverage on the same terms and conditions as other legally married spouses under the state health insurance plan, among others. 6. No Kansas statute, rule, regulation, executive order, or action of the named defendants in this case controls the social attitudes of members of the general public toward any of the plaintiffs. Response: Plaintiffs do not stipulate. The right to marry provides “a dignity and status of immense import” and provides “recognition, dignity, and protection of the class in their own community.” United States v. Windsor, 133 S.Ct. 2675, 2692 (2013). Kansas’s marriage bans instruct “all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” Id. at 2696. 7. No Kansas statute, rule, regulation, executive order, or action of the named defendants in this case prevents any of the plaintiffs from obtaining a change of name in accordance with procedures established by law. Response: Plaintiffs do not stipulate. Plaintiffs may not use the same procedures established by law that are available to different-sex married couples.

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8. No Kansas statute, rule, regulation, executive order, or action of the named defendants in this case prevents any of the plaintiffs from filing Kansas individual income tax returns that conform to their federal income tax returns for the same tax year. Response: Plaintiffs do not stipulate that individual state tax returns would “conform” to their federal ones. 9. At the time the present marriage laws of Kansas were enacted there was no judicial precedent suggesting that their adoption would violate the United States Constitution. Response: Plaintiffs do not stipulate. See Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (arguing that majority decision suggested that state marriage bans are unconstitutional) 10. The marriage laws of Kansas have never permitted any person to marry any other person without restriction. Response: Stipulated 11. There is a rational basis for the Kansas statutory prohibition on underage marriages. Response: Plaintiffs stipulate that they Plaintiffs are not challenging the constitutionality of such laws. 12. The Kansas statutory prohibition on underage marriages is constitutionally valid. Response: Plaintiffs stipulate that they are not challenging the constitutionality of such laws. 13. There is a rational basis for the Kansas statutory prohibition on incestuous marriages. Response: Plaintiffs stipulate that they are not challenging the constitutionality of such laws. 14. The Kansas statutory prohibition on incestuous marriages is constitutionally valid. Response: Plaintiffs stipulate that they are not challenging the constitutionality of such laws.

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15. There is a rational basis for the Kansas statutory prohibition on bigamous marriages. Response: Plaintiffs stipulate that they are not challenging the constitutionality of such laws. 16. The Kansas statutory prohibition on bigamous marriages is constitutionally valid. Response: Plaintiffs stipulate that they are not challenging the constitutionality of such laws. 17. The factual statements appearing in the case of In re Estate of Gardiner, 29 Kan.App.2d 92, 22 P.3d 1086 (2001), affirmed 273 Kan. 191, 42 P.3d 120 (2002) are true and correct. Response: Plaintiffs do not stipulate. 18. In the Matter of the Estate of Marshall G. Gardiner, 273 Kan. 191, 42 P.3d 120 (2002) determined that Kansas is not required to recognize the marriage-related laws and orders of other states. Response: The case speaks for itself. 19. A petition for certiorari was filed in response to the decision in In the Matter of the Estate of Marshall G. Gardiner, 273 Kan. 191, 42 P.3d 120 (2002) refusing to give effect to the law of another state, and was denied by the United States Supreme Court. Response: Stipulated that the Court denied certiorari in Gardner. Plaintiffs do not stipulate to the defendants’ characterization of the holding in that case because the case speaks for itself. 20. The factual statements appearing in the separate opinions of Judge Kelly in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.2014) and Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) are true and correct. Response: Plaintiffs do not stipulate 21. The factual statements appearing in the separate opinions of Judge Sutton in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) are true and correct. Response: Plaintiffs do not stipulate. 22. The Kansas Department of Revenue is an agency of the State of Kansas.

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Response: Stipulated 23. The State of Kansas is one of the fifty states to the United States, having been admitted to the Union as a sovereign state. Response: Stipulated 24. The Secretary of Revenue is an official of the State of Kansas, appointed by the Governor of the State of Kansas as per K.S.A. 75-5101. Response: Stipulated 25. The Secretary of Revenue is not personally involved in income tax administration and has no direct responsibilities in that area. Response: Plaintiffs do not stipulate. Among other things, the terms “personally” and “direct responsibilities” are vague and undefined. 26. The Division of Taxation is responsible for administration and compliance of a variety of Kansas taxes, including but not limited to individual state income tax. Response: Stipulated 27. The Division of Taxation is supervised by a Director of Taxation. The current Director of Taxation is Steve Stotts. Response: Stipulated 28. To avoid interest or penalty, taxpayers filing state income tax returns within the State of Kansas are required to file on or before April 15. Response: Stipulated. 29. For the tax year 2014, state income tax returns are not required to be filed until April 15, 2015. Response: Stipulated. 30. Under current law for tax year 2014, resident taxpayers filing under the status of married filing jointly are taxed as follows: taxable income not over $30,000: 2.7%: (K.S.A. 79-32,110); taxable income over $30,000: $810 plus 4.8% of excess over $30,000 (K.S.A. 79-32,110). Response: K.S.A. 79-32,110 speaks for itself.

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31. Under current law for tax year 2014, resident taxpayers not filing under the status of married filing jointly, including married not filing joint and unmarried taxpayers are taxed as follows: taxable income not over $15,000: 2.7% (79-32,110); taxable income over $15,000: $405 plus 4.8% of excess over $15,000 (K.S.A. 79-32,110). Response: K.S.A. 79-32,110 speaks for itself. 32. The current standard deduction is $3000 for single, $4500 for single head of household, $3750 for married filing separately, and $7500 for married filing jointly. K.S.A. 79-32, 119. Response: K.S.A. 79-32,119 speaks for itself. 33. Tax rates are determined by the Legislature and are subject to change. Response: The Kansas tax laws speak for themselves. 34. Receipts from state income tax revenues are remitted to the State General Fund. Response: The Kansas tax laws speak for themselves. 35. The State of Kansas operates on a fiscal year which begins July 1 of each year. Response: Stipulated. 36. A taxpayer may apply for and receive a tax refund if he or she has overpaid taxes for a tax year in accordance with the time frames set forth in K.S.A. 79-3230(c). Response: K.S.A. 79-3230(c) speaks for itself. 37. A taxpayer claiming to be married, filing joint, as a result of common law marriage can claim married status on his or her return. Response: The Kansas tax laws speak for themselves. 38. The Director of Taxation does not require a certificate of marriage to be submitted with a tax return to document marital status. Response: The Kansas tax laws speak for themselves. 39. If a taxpayer’s return were to be adjusted or a claim for refund were denied by the Director of Taxation, the taxpayer is notified by notice as per K.S.A. 79-3226. Response: K.S.A. 79-3226 speaks for itself

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40. As per K.S.A 79-3226, the taxpayer has 60 days from the notice in which to request an informal conference with the secretary of revenue or the secretary’s designee. Response: K.S.A. 79-3226 speaks for itself 41. The purpose of the informal conference is to review and reconsider all facts and issues that underlie the proposed liability or proposed denial of refund. The Secretary of Revenue or his designee shall hold an informal conference with the taxpayer and shall issue a written final determination thereon. Response: K.S.A. 79-3226 speaks for itself 42. The Secretary of Revenue or the Secretary’s designee shall issue a written final determination within 270 days of the date of the request for informal conference unless the parties agree in writing to extend the time for issuing such final determination. Response: K.S.A. 79-3226 speaks for itself 43. A final determination issued within or after 270 days constitutes final agency action subject to administrative review by the state board of tax appeals. Response: K.S.A. 79-3226 speaks for itself 44. In the event that a written final determination is not rendered within 270 days, the taxpayer may appeal to the state board of tax appeals at any time provided that a written extension of time is not in effect. Response: K.S.A. 79-3226 speaks for itself 45. A taxpayer is encouraged to take advantage of the state’s e-filing system, called “KSWebtax,” which eliminates paper returns. Response: The Kansas tax laws speak for themselves. 46. The state’s e-filing system requires only that the taxpayer input data into the system, which allows the system to compute the tax due. Response: The Kansas tax laws speak for themselves. 47. The state’s e-filing system is designed so that taxpayers may utilize it without the need for accountants, lawyers or other income tax preparers. Response: The Kansas tax laws speak for themselves.

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48. The state’s e-filing system is free for use by taxpayers. Response: The Kansas tax laws speak for themselves. 49. Taxpayers needing help with taxes are also encouraged to utilize tax assistance available on KDOR’s website, call the Kansas Taxline at 1-785-368-8222, or visit the Docking State Office Building in Topeka at 915 Southwest Harrison during office hours. Response: The Kansas tax laws speak for themselves. 50. The State does not require submission of a copy of a federal return with the state income tax return. Response: The Kansas tax laws speak for themselves. 51. Notice 13-18, along with a worksheet, was issued in October 2013. Response: Stipulated 52. 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. Response: Stipulated 53. No Notice 13-18 worksheet is needed for couples filing federal returns under the status married filing separately as their income is already separated. Response: Stipulated 54. Notice 13-18 is not a Kansas statute or regulation. Response: Stipulated 55. A lawsuit is presently pending in the District Court of Shawnee County entitled Nelson v. Kansas Dept. of Revenue, 2013 C 1,465, challenging Notice 13-18 on grounds that the Notice violates Kansas statutes and that the Notice was enacted without compliance with statutorily required procedure. Response: Plaintiffs do not stipulate as phrased above. The pleadings in Nelson v. Kansas Dept. of Revenue speak for themselves. Plaintiffs would stipulate to the authenticity of the pleadings as an exhibit. 56. Plaintiffs Peters and Mohrman have not submitted a Kansas state income tax return for 2014.

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Response: Stipulated 57. Kansas law provides a plain, speedy, and efficient remedy for challenge to its taxes within the meaning of the Tax Injunction Act. Response: Plaintiffs do not stipulate 58. Douglas A. Hamilton is currently serving as Clerk of the District Court for Douglas County, Kansas. Response: Stipulated 59. Douglas County, Kansas is in the Seventh Judicial District of Kansas. Response: Stipulated 60. The Douglas County District Court sits in Lawrence, Kansas. Response: Stipulated 61. Bernie Lumbreras is currently serving as the Clerk of the District Court in Sedgwick County, Kansas. Response: Stipulated 62. Sedgwick County is in the 18th Judicial District of Kansas. Response: Stipulated 63. The Sedgwick County District Court sits in Wichita, Kansas. Response: Stipulated 64. Chief Judge Robert Fairchild is the current Chief Judge of the 7th Judicial District, having been appointed by the Supreme Court to that position. Response: Stipulated 65. Chief Judge James Fleetwood is the current Chief Judge of the 18th Judicial District, having been appointed to that position. Response: Stipulated 66. As Clerks, Mr. Hamilton and Ms. Lumbreras are officers of the State of Kansas, appointed by and subject to supervision by the Chief Judges of their respective

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judicial districts. K.S.A. 2014 Supp. 20-343. Response: Stipulated 67. 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. Response: Stipulated 68. 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. Response: Stipulated 69. Hamilton and Lumbreras’ statutory functions do not include administration of Kansas income tax laws. Response: Stipulated 70. Hamilton and Lumbreras do not have a role in determining whether a person is entitled to inherit property through intestate succession in Kansas. Response: Stipulated 71. Hamilton and Lumbreras do not file out-of-state marriage licenses in their respective offices. Response: Stipulated 72. Hamilton and Lumbreras do not determine eligibility requirements for who is considered married for insurance purposes. Response: Stipulated 73. Hamilton and Lumbreras do not authorize persons to perform marriage rites. Response: Stipulated 74. Hamilton and Lumbreras have no role in the function set forth in K.S.A. 23-2504. Response: Stipulated 75. Kansas is a unified court system. K.S.A. 20-101, Kan. Const. Art. 3, § 1 (“[t]he supreme court shall have general administrative authority over all courts in this state”); K.S.A. 2014 Supp. 20-318, K.S.A. 2014 Supp. 20-319.

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Response: Stipulated 76. In Kansas, the district courts are organized into thirty-one (31) judicial districts. Kan. Const., Art. 3, § 6; K.S.A. 4-202, et seq. Response: Stipulated 77. Chief Judges, including Judge Fairchild and Judge Fleetwood, are subject to appointment by and supervision of the Kansas Supreme Court. See, e.g., K.S.A. 2014 Supp. 20-329. Response: Stipulated 78. Clerks of the District Court Hamilton and Lumbreras, are Kansas Judicial Branch officers, appointed by their respective Chief Judges and are Judicial Branch employees. K.S.A. 2014 Supp. 20-343, K.S.A. 2014 Supp. 20-345. Response: Stipulated 79. Under the Kansas Constitution, the Judicial Branch is constitutionally separate from the Executive and Legislative Branches in Kansas. 80. As of June 30, 2013, there were 246 district judges in Kansas Response: Stipulated 81. The State of Kansas is one of the 50 sovereign States. Response: Stipulated; however, this paragraph is nearly identical to ¶ 23. 82. In Kansas, marriage licenses may be issued by judges or district court clerks. Response: Stipulated 83. By statute, district court clerks are prohibited from giving legal advice. Response: Stipulated 84. In administering the marriage license issuance function, district court clerks act as aides to the judges of their judicial districts who would otherwise be performing this function. Response: Stipulated 85. In the Seventh Judicial District, there are currently six (6) judges.

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Response: Stipulated 86. In the 18th Judicial District, there are currently twenty-eight (28) judges. Response: Stipulated 87. If there is a question about whether a person is legally entitled to a marriage license, the applicant is referred to a judge for determination. Response: Stipulated 88. As of at least October 7, 2013, clerks had been given the legal advice of the Office of Judicial Administration for judges to make the determination of whether a same-sex applicant for marriage license was legally entitled to the issuance of such license. Response: Plaintiffs do not stipulate. The meaning of this sentence is unclear. 89. On October 8, 2014, Kail Marie appeared in person at the Office of the Clerk of the District Court of Douglas County, Kansas, requested and was given an application which was returned to the deputy clerk who then gave her a marriage license worksheet along with the instruction to return no sooner than Tuesday, October 14, 2014, absent a waiver of the three-day statutory waiting period, or words to that effect. Response: Stipulated 90. Neither Kail Marie nor Michelle Brown returned to the Clerk’s Office on or after October 14, 2014, as instructed. Response: Plaintiffs do not stipulate. Plaintiffs Marie and Brown returned to the clerk’s office on October 16, 2014, were denied a marriage license, and were given a copy of Administrative Order 14-13. 91. The only claim in the Amended Complaint against Clerks Hamilton and Lumbreras is an official capacity claim by Plaintiffs Marie, Brown, DiTrani and Wilks for injunctive and declaratory relief. Response: Stipulated 92. The claims in the Amended Complaint against Clerks Hamilton and Lumbreras are based upon events pled in the Amended Complaint which occurred on or before October 9, 2014. Response: Stipulated

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93. As of November 13, 2014, Hamilton and his office have been operating under Administrative Order 14-17. Response: Stipulated 94. Administrative Order 14-17 instructs the Clerk of the District Court to issue marriage licenses to all otherwise qualified applicants without regard to the gender of each applicant. Response: Stipulated 95. Administrative Order 14-17 was issued by Chief Judge Fairchild. Response: Stipulated 96. Administrative Order 14-17 rescinds Administrative Order 14-13, which is no longer in effect. Response: Stipulated 97. Since Administrative Order 14-17 was entered, Hamilton and his subordinates have been issuing marriage licenses to applicants without regard to gender. Response: Stipulated 98. Except for recognized holidays, Hamilton’s office is open for business, including but not limited to accepting applications for marriage licenses and issuing licenses every week day from 8 a.m. to 12 noon and 1 p.m. to 4 p.m. Marie and Brown have not tendered to Hamilton’s office the required fee for a marriage license. Response: Stipulated 99. On October 10, 2014, the Kansas Supreme Court issued a stay of a Tenth Judicial District Administrative Order authorizing same-sex marriages citing the need for uniformity among judicial districts. Response: Stipulated 100. Any determination as to whether a same-sex couple is entitled to a marriage license in Douglas County was made by Chief Judge Robert Fairchild. Response: Plaintiffs do not stipulate. The meaning of this sentence is unclear. 101. Administrative Order 14-13 was file-stamped 4:51 p.m. on October 8, 2014.

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Response: Stipulated 102. On November 13, 2014, Chief Judge James R. Fleetwood issued Administrative Order No. 14-08 for the 18th Judicial District. Response: Stipulated 103. Administrative Order 14-08 directs the clerk of the court and her staff to issue marriage licenses without consideration of gender of the applicants in accordance with existing court orders and to otherwise comply with all requirements relating to issuing said marriage licenses generally. Response: Stipulated 104. Since November 13, 2014, Lumbreras and her Office have been issuing marriage licenses without regard to the gender of the applicant. Response: Stipulated 105. On October 7, 2014, a person identifying herself as Kerry Wilks appeared in the Office of the Clerk of the District Court for the 18th Judicial District in Wichita, Kansas seeking to apply for a marriage license and, on the express direction of Chief Judge James Fleetwood, did not receive an application on that date. Response: Stipulated. Plaintiffs request that the words “a person identifying herself as” be dropped since Kerry Wilks so appeared. 106. On October 7, 2014, Chief Judge Fleetwood conveyed the substance of his legal determination to Wilks. Response: Plaintiffs do not stipulate that Chief Judge Fleetwood made a “legal” determination but stipulate that he informed Wilks on October 7, 2014 that a marriage license would not be issued. 107. On October 7, 2014, Wilks dealt with Chief Judge Fleetwood in his official judicial capacity, in the Sedgwick County Courthouse. Response: Plaintiffs do not stipulate. This is a conclusion of law. Wilks dealt with Chief Judge Fleetwood in his official administrative capacity. 108. On October 9, 2014, persons identifying themselves as Kerry Wilks and Donna DiTrani appeared in the Office of the Clerk of the District Court for the 18th Judicial District and sought to apply for a marriage license. Response: Stipulated. Plaintiffs request that the words “persons identifying themselves as” be dropped since Kerry Wilks and Donna DiTrani so appeared.

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109. On direction of Chief Judge Fleetwood, Wilks and DiTrani were given an application which was filled out and returned to the deputy clerk. Response: Stipulated 110. On direction of Judge Eric Yost, the Clerk informed Wilks and DiTrani of his legal determination that same-sex persons were not legally entitled to marriage licenses in Kansas as of that date. Response: Plaintiffs do not stipulate that Judge Yost made a legal determination, but they stipulatie that at the direction of Judge Yost, the Clerk informed Wilks and DiTrani that same-sex persons were not legally entitled to marriage licenses in Kansas as of that date. 111. Lumbreras’ Office accepted Wilks and DiTrani’s application even though they had not checked a box on the form for “Bride” or “Groom.” Response: Plaintiffs do not stipulate that the application was accepted. 112. Marriage license applications in the 18th Judicial District are kept on file for a year. Response: Stipulated 113. Since October 9, 2014, neither Wilks nor DiTrani returned to Lumbreras’ Office to submit a completed worksheet. Response: Stipulated 114. Since October 9, 2014, neither Wilks nor DiTrani returned to Lumbreras’ Office to pay the required fee. Response: Stipulated 115. Except for recognized holidays, Lumbreras’ Office is open for business including but not limited to accepting applications for marriage licenses and issuing licenses, every week day from 8 a.m. to 5 p.m. for regular business, 8 a.m. to 4 p.m. for applications for marriage licenses. Response: Stipulated 116. Since October 9, 2014, neither Wilks nor DiTrani has returned to Lumbreras’ Office to pick up a marriage license. Response: Stipulated

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117. By Order dated November 18, 2014, the Kansas Supreme Court lifted the stay on issuance of same-sex marriage licenses in the Tenth Judicial District in State ex rel. Schmidt v. Moriarty, case number 112,590. Response: Stipulated 118. In its November 18, 2014 Order, the Kansas Supreme Court determined that Chief Judge Moriarty of the Tenth Judicial District was engaged in a judicial function when he issued his Administrative Order. Response: Plaintiffs do not stipulate. The Order speaks for itself. 119. Since November 18, 2014, marriage licenses have been available to same-sex couples in Johnson County, Kansas. Response: Stipulated 120. Neither Kail Marie nor Michelle Brown have sought to receive a marriage license from Johnson County, Kansas. Response: Stipulated 121. Neither Kerry Wilks nor Donna DiTrani have sought to receive a marriage license from Johnson County, Kansas. Response: Stipulated 122. Marriage licenses are presently available to same-sex couples in several counties in Kansas. Response: Stipulated 123. Neither Marie, Brown, Wilks nor DiTrani have sought a marriage license from any Kansas county since November 13, 2014. Response: Stipulated 124. Plaintiffs Wilks and DiTrani told a newspaper reporter in October of 2014 that they are already married. Response: If defendants provide a copy of the article, Plaintiffs will determine whether they will stipulate to its authenticity and accuracy. 125. Plaintiffs Wilks, DiTrani, Marie and Brown are considered married at common law.

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Response: Plaintiffs do not stipulate. 126. Kail Marie told Peter Hancock in an article published by the Lawrence Journal World on November 12, 2014 that she and plaintiff Brown have chosen not to proceed with their marriage plans at this time. Response: Plaintiffs do not stipulate. Kail Marie never spoke to Peter Hancock. If defendants provide a copy of the article, however, Plaintiffs will determine whether they will stipulate to the authenticity and accuracy of any purported quote of or statement attributed to Kail Marie. 127. Kerry Wilks was previously married in Iowa. Response: Plaintiffs do not stipulate. Plaintiff Kerry Wilks has never been married. 128. Donna DiTrani was previously married. Response: Plaintiffs do not stipulate. Plaintiff Donna DiTrani has never been married. 129. Kail Marie was previously married. Response: Plaintiffs do not stipulate. Plaintiff Kail Marie has never been married. 130. Michelle Brown was previously married. Response: Plaintiffs do not stipulate. Plaintiff Michelle Brown has never been married.

Respectfully submitted,

/s/ Stephen Douglas Bonney Stephen Douglas Bonney, KS Bar No. 12322 ACLU Foundation of Kansas 3601 Main Street Kansas City, MO 64111 Tel. (816) 994-3311 [email protected] ATTORNEYS FOR PLAINTIFFS

Certificate of Service

I certify that, on January 20, 2015, the foregoing document was served by e-mail on the following: Steve R. Fabert, Assistant Attorney General (counsel for Defendant Mosier), [email protected]; M.J. Willoughby, Assistant Attorney General (counsel

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for Defendant Douglas A. Hamilton, Clerk of the Douglas County District Court,; and Defendant Bernie Lumbreras, Clerk of the Sedgwick County District Court), [email protected].

/s/ Stephen Douglas Bonney

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2:14-cv-02518 #99

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