2:14-cv-02518 #99

Case 2:14-cv-02518-DDC-TJJ Document 99 Filed 03/04/15 Page 1 of 4
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,
v.
)
)
)
)
)
)
)
) Case No. 14-CV-2518-DDC-TJJ
)
)
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
)
th
)
Capacity as Clerk of the District Court for the 7
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 Revenues 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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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: Steve.Fabert@ag.ks.gov
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 Courts 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, 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.
s/Steve R. Fabert
Steve R. Fabert
Attorney for defendants Jordan, Kaspar, and Michael
Case 2:14-cv-02518-DDC-TJJ Document 99-1 Filed 03/04/15 Page 1 of 3
IN THE UNITED STATED DISTRICT COURT

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,
v.
)
)
)
)
)
)
)
) Case No. 14-CV-2518-DDC-TJJ
)
)
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 Revenues 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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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
IN THE UNITED STATES DISTRICT COURT

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 Courts 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 states 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 statutes 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. Kansass 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.

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. Kansass 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 samesex couples equal protection. Moreover, Kansass prohibitions on recognizing the
marriages of same-sex couples, which continue to be enforced, deny plaintiffs equal
protection.
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. Kansass 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.

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). Kansass 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.
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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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.
such laws.
14. The Kansas statutory prohibition on incestuous marriages is constitutionally
valid.
such laws.
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15. There is a rational basis for the Kansas statutory prohibition on bigamous
marriages.
such laws.
16. The Kansas statutory prohibition on bigamous marriages is constitutionally
valid.
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.
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.
22. The Kansas Department of Revenue is an agency of the State of Kansas.

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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.
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.
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.
27. The Division of Taxation is supervised by a Director of Taxation. The current

Director of Taxation is Steve Stotts.
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.
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. 7932,110).
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.
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.
35. The State of Kansas operates on a fiscal year which begins July 1 of each year.
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.
38. The Director of Taxation does not require a certificate of marriage to be

submitted with a tax return to document marital status.
39. If a taxpayers 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
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 secretarys
designee.
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.
42. The Secretary of Revenue or the Secretarys 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.
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.
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.
45. A taxpayer is encouraged to take advantage of the states e-filing system, called
KSWebtax, which eliminates paper returns.
46. The states e-filing system requires only that the taxpayer input data into the
system, which allows the system to compute the tax due.
47. The states e-filing system is designed so that taxpayers may utilize it without
the need for accountants, lawyers or other income tax preparers.
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48. The states e-filing system is free for use by taxpayers.

49. Taxpayers needing help with taxes are also encouraged to utilize tax assistance
available on KDORs 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.
50. The State does not require submission of a copy of a federal return with the state
income tax return.
51. Notice 13-18, along with a worksheet, was issued in October 2013.
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.
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.
54. Notice 13-18 is not a Kansas statute or regulation.

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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57. Kansas law provides a plain, speedy, and efficient remedy for challenge to its
taxes within the meaning of the Tax Injunction Act.
58. Douglas A. Hamilton is currently serving as Clerk of the District Court for
Douglas County, Kansas.
59. Douglas County, Kansas is in the Seventh Judicial District of Kansas.

60. The Douglas County District Court sits in Lawrence, Kansas.

61. Bernie Lumbreras is currently serving as the Clerk of the District Court in
Sedgwick County, Kansas.
62. Sedgwick County is in the 18th Judicial District of Kansas.

63. The Sedgwick County District Court sits in Wichita, Kansas.

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.
65. Chief Judge James Fleetwood is the current Chief Judge of the 18th Judicial
District, having been appointed to that position.
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.

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.
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.
69. Hamilton and Lumbreras statutory functions do not include administration of

Kansas income tax laws.
70. Hamilton and Lumbreras do not have a role in determining whether a person is
entitled to inherit property through intestate succession in Kansas.
71. Hamilton and Lumbreras do not file out-of-state marriage licenses in their
respective offices.
72. Hamilton and Lumbreras do not determine eligibility requirements for who is
considered married for insurance purposes.
73. Hamilton and Lumbreras do not authorize persons to perform marriage rites.
74. Hamilton and Lumbreras have no role in the function set forth in K.S.A. 23-2504.
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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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.
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.
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.
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
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.
83. By statute, district court clerks are prohibited from giving legal advice.
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.
85. In the Seventh Judicial District, there are currently six (6) judges.
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86. In the 18th Judicial District, there are currently twenty-eight (28) judges.
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.
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 samesex 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.
90. Neither Kail Marie nor Michelle Brown returned to the Clerks Office on or after
October 14, 2014, as instructed.
Response: Plaintiffs do not stipulate. Plaintiffs Marie and Brown returned to the
clerks 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.
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.
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93. As of November 13, 2014, Hamilton and his office have been operating under
Administrative Order 14-17.
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.
95. Administrative Order 14-17 was issued by Chief Judge Fairchild.
96. Administrative Order 14-17 rescinds Administrative Order 14-13, which is no

longer in effect.
97. Since Administrative Order 14-17 was entered, Hamilton and his subordinates
have been issuing marriage licenses to applicants without regard to gender.
98. Except for recognized holidays, Hamiltons 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 Hamiltons office the required fee for a
marriage license.
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.
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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102. On November 13, 2014, Chief Judge James R. Fleetwood issued Administrative
Order No. 14-08 for the 18th Judicial District.
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.
104. Since November 13, 2014, Lumbreras and her Office have been issuing
marriage licenses without regard to the gender of the applicant.
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.
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 DiTranis 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.
113. Since October 9, 2014, neither Wilks nor DiTrani returned to Lumbreras Office
to submit a completed worksheet.
114. Since October 9, 2014, neither Wilks nor DiTrani returned to Lumbreras Office
to pay the required fee.
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.
116. Since October 9, 2014, neither Wilks nor DiTrani has returned to Lumbreras
Office to pick up a marriage license.
15
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.
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.
120. Neither Kail Marie nor Michelle Brown have sought to receive a marriage
license from Johnson County, Kansas.
121. Neither Kerry Wilks nor Donna DiTrani have sought to receive a marriage
license from Johnson County, Kansas.
122. Marriage licenses are presently available to same-sex couples in several

counties in Kansas.
123. Neither Marie, Brown, Wilks nor DiTrani have sought a marriage license from
any Kansas county since November 13, 2014.
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.
16
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
dbonney@aclukansas.org
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), Steve.Fabert@ag.ks.gov; M.J. Willoughby, Assistant Attorney General (counsel
17
for Defendant Douglas A. Hamilton, Clerk of the Douglas County District Court,; and
Defendant Bernie Lumbreras, Clerk of the Sedgwick County District Court),
MJ.Willoughby@ag.ks.gov.
/s/ Stephen Douglas Bonney
18

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Case 2:14-cv-02518-DDC-TJJ Document 99 Filed 03/04/15 Page 1 of 4

IN THE UNITED STATED DISTRICT COURT

REPLY IN SUPPORT OF MOTION OF DEFENDANTS MOSIER, JORDAN, KASPAR,

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

Case 2:14-cv-02518-DDC-TJJ Document 99 Filed 03/04/15 Page 3 of 4

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

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

IN THE UNITED STATED DISTRICT COURT

DECLARATION OF STEVE R. FABERT

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

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

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

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

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

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

Plaintiffs Responses to Defendants Requested Stipulations of Fact

3. No Kansas statute, rule, regulation, executive order, or action of the named

Response: Plaintiffs do not stipulate. This is a conclusion of law rather than a

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 2 of 18

4. No Kansas statute, rule, regulation, executive order, or action of the named

Response: Plaintiffs do not stipulate. This is a conclusion of law rather than a

Response: Plaintiffs do not stipulate. Kansass prohibition on recognizing the

6. No Kansas statute, rule, regulation, executive order, or action of the named

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 3 of 18

8. No Kansas statute, rule, regulation, executive order, or action of the named

12. The Kansas statutory prohibition on underage marriages is constitutionally

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 4 of 18

17. The factual statements appearing in the case of In re Estate of Gardiner, 29

22. The Kansas Department of Revenue is an agency of the State of Kansas.

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 5 of 18

25. The Secretary of Revenue is not personally involved in income tax

27. The Division of Taxation is supervised by a Director of Taxation. The current

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 6 of 18

37. A taxpayer claiming to be married, filing joint, as a result of common law

38. The Director of Taxation does not require a certificate of marriage to be

Response: K.S.A. 79-3226 speaks for itself

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 7 of 18

Response: K.S.A. 79-3226 speaks for itself

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 8 of 18

48. The states e-filing system is free for use by taxpayers.

54. Notice 13-18 is not a Kansas statute or regulation.

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 9 of 18

Response: Plaintiffs do not stipulate

59. Douglas County, Kansas is in the Seventh Judicial District of Kansas.

60. The Douglas County District Court sits in Lawrence, Kansas.

62. Sedgwick County is in the 18th Judicial District of Kansas.

63. The Sedgwick County District Court sits in Wichita, Kansas.

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 10 of 18

judicial districts. K.S.A. 2014 Supp. 20-343.

69. Hamilton and Lumbreras statutory functions do not include administration of

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 11 of 18

81. The State of Kansas is one of the 50 sovereign States.

Response: Stipulated; however, this paragraph is nearly identical to 23.

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 12 of 18

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

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 13 of 18

95. Administrative Order 14-17 was issued by Chief Judge Fairchild.

96. Administrative Order 14-17 rescinds Administrative Order 14-13, which is no

100. Any determination as to whether a same-sex couple is entitled to a marriage

Response: Plaintiffs do not stipulate. The meaning of this sentence is unclear.

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 14 of 18

Response: Stipulated. Plaintiffs request that the words persons identifying

Case 2:14-cv-02518-DDC-TJJ Document 99-2 Filed 03/04/15 Page 15 of 18