Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN,
and KERRY WILKS, Ph.D., and DONNA
DITRANI,
Plaintiffs,
v.

)
)
)
)
)
)
ROBERT MOSER, M.D., in his official capacity )
as Secretary of the Kansas Department of
)
Health and Environment,
)
DOUGLAS A. HAMILTON, in his official
)
Capacity as Clerk of the District Court for the 7th )
Judicial District (Douglas county), and
)
BERNIE LUMBRERAS, in her official capacity
)
as Clerk of the District Court for the 18th
)
Judicial District (Sedgwick County),
)
Defendants.
)
_________________________________________ )

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

ANSWER OF DEFENDANTS DOUGLAS A. HAMILTON, CLERK OF THE DISTRICT

COURT FOR THE 7TH JUDICIAL DISTRICT AND BERNIE LUMBRERAS, CLERK
OF THE DISTRICT COURT FOR THE 18TH JUDICIAL DISTRICT
Defendants Douglas A. Hamilton, in his official capacity as Clerk of the District Court
for the 7th Judicial District, and Bernie Lumbreras, Clerk of the District Court for the 18th
Judicial District, respond to and answer the Complaint as follows:
1. Every allegation of the Complaint that is not hereafter expressly admitted is denied.
2. These Defendants admit only the allegations of paragraphs 11, 12, 24, 25, 26, 44, 45, 54,
and 55 of the Complaint.
3. These Defendants deny the allegations of paragraphs 2, 13, 22, 32, 33, 35, 46, 47, 49, 50,
51, 52, 56, 58, 59, 60, 61, 64, 65, 66, 70, 72, 74, 75, 76, 77, 79, 80, and 81 of the
Complaint.

Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 2 of 7

4. These Defendants are without sufficient knowledge to admit or deny the allegations of
paragraphs 1, 3, 4, 5, 6, 7, 8, 14, 15, 20, 23, 27, 28, 29, 30, 31, 34, 48, 57, 62, 63, 67, 68,
69, 71, and 73 of the Complaint, and the same are therefore denied.
5. In response to paragraphs 9 and 10 of the Complaint, the first and last sentences of
paragraphs 9 and 10 respectively are admitted. The second sentence of these paragraphs
is denied in that issuance of same-sex marriage licenses in Douglas County or Sedgwick
County is subject to the judicial decision of the judges of these counties, including the
respective Chief Judges, and was not the Clerks responsibility. K.S.A. 2014 Supp. 252505 provides that clerks or judges issue licenses to persons determined to be legally
entitled to the license, a judicial function and determination, and provides for
administration of an oath and inquiry in aid of this judicial determination. The remainder
of the allegations in these paragraphs is denied.
6. Defendant Lumbreras lacks knowledge and information sufficient to admit or deny the
allegations in paragraphs 16 and 17 of the Complaint and therefore denies same.
7. In response to paragraph 16 of the Complaint, Defendant Hamilton admits only that on or
about 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. To the extent not
specifically admitted, the remainder of the allegations in this paragraph is denied.
8. In response to paragraph 17 of the Complaint, Defendant Hamilton states Administrative
Order 14-13, speaks for itself as to its contents; a certified copy of the referenced Order is
2

Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 3 of 7

attached hereto and fully incorporated by reference herein as per Fed. R. Civ. P. 10; the
allegations in the Complaint characterizing the Order are denied. It is admitted, however,
that any decision as to issuance of marriage licenses in Douglas County is made by Chief
Judge Robert Fairchild, performing a judicial function for which he is immune, and not
by Defendant Hamilton or his deputies. To the extent not specifically admitted, the
remainder of the allegations in this paragraph is denied.
9. Defendant Hamilton lacks knowledge and information sufficient to admit or deny the
allegations in paragraphs 18, 19, and 21 of the Complaint and therefore denies same.
10. In response to the allegations in paragraphs 18 of the Complaint, Defendant Lumbreras
admits only that persons identifying themselves as DiTrani and Wilks appeared at the
Office of the Clerk of the District Court for the 18th Judicial District in Wichita, Kansas
on or about October 6, 2014, seeking to apply for a marriage license and that deputy
clerks, acting under the order and express direction of Chief Judge of the Judicial District
James Fleetwood did not give the Plaintiffs an application on that date. To the extent not
specifically admitted, the remainder of the allegations in this paragraph is denied.
11. In response to the allegations of paragraph 19 of the Complaint, Defendant Lumbreras
admits only that on or about 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. It is also
admitted that Chief Judge Fleetwood conveyed the substance of his legal determination to
the applicant. To the extent not specifically admitted, the remainder of the allegations in
this paragraph is denied.
3

Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 4 of 7

12. In response to the allegations of paragraph 21 of the Complaint, Defendant Lumbreras

admits only that persons identifying themselves as Wilks and DiTrani appeared in the
Office of the Clerk of the District Court for the 18th Judicial District in Wichita, Kansas
and sought to apply for a marriage license. On direction of Chief Judge Fleetwood, Wilks
and DiTrani were given an application which was filled out and returned to the deputy
clerk. It is admitted that any denials were based upon Chief Judge Fleetwoods directions
and orders based upon his determination of Kansas law expressed by Judge Eric Yost
acting on behalf of Chief Judge Fleetwood. To the extent not specifically admitted, the
remainder of the allegations in this paragraph is denied.
13. No response is required to paragraphs 36 through 42 of the Complaint because there are
no such paragraphs.
14. In response to paragraph 43 of the Complaint, these Defendants incorporate by reference
their above-referenced responses to paragraphs 1 through 42 of the Complaint.
15. In response to paragraph 53 of the Complaint, these Defendants incorporate by reference
their above-referenced responses to paragraphs 1 through 52 of the Complaint.
16. In response to paragraph 78 of the Complaint, these Defendants incorporate by reference
their responses to paragraphs 1 through 77 of the Complaint.
17. Defendants deny that as Clerks of the District Court sued in their respective official
capacities that they are engaged in the violation of any right guaranteed to Plaintiffs by
any federal law, whether a statutory law or a constitutional provision; deny that any of the
harms asserted in the Complaint result from the official actions of the Clerks of the
District Court and deny that the harms asserted in the Complaint will be redressed or
alleviated by the relief requested.
4

Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 5 of 7

18. The Complaint fails to state a claim on which relief can be granted against the Clerk
Hamilton or Clerk Lumbreras.
19. The Court lacks subject matter jurisdiction over any claim asserted against these
Defendants by reason of the Eleventh Amendment to the United States Constitution, by
reason of the absence of Article III standing, the lack of a justiciable case or controversy,
the Anti-Injunction Act, 28 U.S.C. 2283, abstention doctrines, and by reason of the
absence of prudential standing.
20. Any relief against these Defendants is barred by the statute of limitations, the doctrines of
laches and mootness, failure to join necessary parties under Fed. R. Civ. P. 19, estoppel,
illegality, by Plaintiffs knowing and voluntary alleged waiver of common law marriage
which requires no license, and by Plaintiffs knowing and voluntary waiver of the right to
marry under the laws of another jurisdiction that has no public policy against same-sex
marriage.
21. None of the Plaintiffs has been barred from entering into a legally enforceable marriage
by reason of any action of the Clerk of the District Court for reasons including but not
limited to the fact that common law marriage is recognized in Kansas, a procedure not
within the province or control of Clerks.
22. As to Defendant Hamilton in particular, the Complaint fails to allege the occurrence of
the condition precedent as the Complaint does not allege that the Plaintiffs returned to the
Clerks Office for the requested marriage license and were denied a license.
23. The Complaint alleges that the complained of decisions were made by Chief Judge
Robert Fairchild and Chief Judge James Fleetwood respectively; however, neither judge
has been named in the Complaint or served with summons, and both judges, as well as
5

Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 6 of 7

Clerks acting on their express direction, are entitled to judicial immunity at common law
as well as under 42 U.S.C. 1983 and are also immune as to any claim for attorneys
fees. The action should also be dismissed for failure to join these parties as per Fed. R.
Civ. P. 19(b).
24. Because Kansas law does not recognize the legal enforceability of a marriage between
persons of the same sex for reasons of public policy, it is not possible to afford effective
relief to Plaintiffs without naming as defendants the persons who would enforce the
public policy prohibition. Any such persons would qualify as required parties under Fed.
R. Civ. P. 19. Failure to join these additional parties exposes the State of Kansas and all
of its employees involved in the enforcement of marriage laws to the substantial risk of
incurring inconsistent obligations. Since no such parties have been named, and apparently
cannot be named as parties consistent with the Eleventh Amendment and principles of
judicial immunity, this lawsuit should be dismissed pursuant to Fed. R. Civ. P. 19(b).
Wherefore, Defendants Douglas A. Hamilton and Bernie Lumbreras pray that plaintiffs
take nothing by their Complaint and that the same should be dismissed with prejudice, with costs
assessed against Plaintiffs.

Case 2:14-cv-02518-DDC-TJJ Document 49 Filed 11/18/14 Page 7 of 7

Respectfully submitted,
OFFICE OF THE ATTORNEY GENERAL
DEREK SCHMIDT

s/M.J. Willoughby
M.J. Willoughby #14059
Assistant Attorney General
Office of the Attorney General
120 S.W. 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785)296-2215
Fax: (785) 296-6296
Email: MJ.Willoughby@ag.ks.gov
Attorney for Defendants Hamilton and Lumbreras

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
system which serves a copy upon Plaintiffs counsel of record, Stephen Douglas Bonney, ACLU
Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and Mark P. Johnson, Dentons
US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111, dbonney@aclukansas.org and
Mark.johnson@dentons.com and Joshua A. Block, American Civil Liberties Foundation, 125
Broad Street, 18th Floor, New York, NY 100004, jblock@aclu.org and Counsel for Defendant
Robert Moser, M.D., Steve Fabert, Assistant Attorney General, 120 S.W. 10th Avenue, Topeka,
KS 66612-1597, Steve.Fabert@ag.ks.gov.
s/M.J. Willoughby
M.J. Willoughby
Attorney for Defendants Hamilton
and Lumbreras

Case 2:14-cv-02518-DDC-TJJ Document 49-1 Filed 11/18/14 Page 1 of 2

Exhibit A

Case 2:14-cv-02518-DDC-TJJ Document 49-1 Filed 11/18/14 Page 2 of 2