Case 2:14-cv-02518-DDC-TJJ Document 104 Filed 03/09/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE, et al.
Plaintiffs,
v.
SUSAN MOSIER, M.D., in her official capacity
as Secretary of the Kansas Department of
Health and Environment, et al.,
Defendants.

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Case No. 14-cv-2518

PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION OF DEFENDANT COURT

CLERKS TO STAY DISCOVERY AND OTHER PRETRIAL ACTIVITIES
Defendants Hamilton and Lumbreras (Defendant Court Clerks) have moved the Court
for an Order staying discovery and all other pretrial activities (Doc. 94), including their
responses to Plaintiffs summary judgment motion (Doc. 85), pending a ruling on Defendant
Court Clerks Motion to Dismiss Plaintiffs First Amended Complaint; a ruling by the Tenth
Circuit on Defendants appeal of the preliminary injunction; and the United States Supreme
Courts decision in DeBoer v. Snyder. The Court should deny Defendants Motion to Stay for
three reasons. First, the general rule in the District of Kansas is to deny motions to stay
discovery even though dispositive motions are pending. Wolf v. United States, 157 F.R.D. 494,
495 (D. Kan. 1994) (denying stay of discovery despite pendency of motion to dismiss). Second,
the material facts underlying Plaintiffs marriage license claims against the Defendant Court
Clerks are undisputed or admitted so that no discovery on those claims is required. Third, this
Court, the Tenth Circuit, and the Supreme Court have denied most, if not all, of the stay requests
in the many marriage equality cases pending in the federal courts so that granting the present

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motion would unnecessarily continue the irreparable harm Plaintiffs are suffering as a result of
Defendants violation of their constitutional rights.
Plaintiffs motion for summary judgment turns entirely on pure questions of law,
specifically whether the Kansas laws prohibiting same-sex marriage are unconstitutional. In
addition, the undisputed material facts set forth in the Memorandum in Support of Plaintiffs
Motion for Summary Judgment regarding the marriage license claims have been admitted or can
be judicially noticed (i.e., statutes, administrative orders, and the identities of state officials). See,
e.g., Doc. 85, 1, 13-14, and 16-20. Most importantly, there is no dispute that the Defendant
Court Clerks denied the marriage license applications of Plaintiffs Marie and Brown and
Plaintiffs Wilks and DiTrani; Defendants have admitted that. See Doc. 85, 13, 14, & 16. And
the Court so found in its Memorandum and Order granting the preliminary injunction. Doc. 29 at
3-5.
With respect to Plaintiffs marriage license claims, this is an open-and-shut case where
the result is dictated by binding precedent. Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.), cert.
denied, 135 S. Ct. 265 (2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert denied, 135 S. Ct.
271 (2014). When it granted Plaintiffs motion for preliminary injunction on the marriage
license claims, this Court found that Plaintiffs and other same-sex couples are suffering
irreparable harm each day that Defendants prevent them from exercising their clearly established
rights under binding precedent. The Tenth Circuit and Supreme Court then denied Defendants
motion to stay enforcement of the preliminary injunction in this case. Moreover, earlier this
month, the Supreme Court denied a request by Alabama to stay enforcement of a district court
decision striking down that states marriage bans even though the Supreme Court had already
granted petitions for certiorari to decide the constitutional question this term. See Strange v.

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Searcy, 135 S. Ct. 940 (2014). In denying Alabamas stay application, the Supreme Court made
clear that the rights of same-sex couples should not be held in abeyance until it issues a decision
at the end of June. Plaintiffs and other same-sex couples in Kansas are entitled to relief now.1
For the foregoing reasons, Plaintiffs request that the Court deny Defendant Court Clerks
motion to stay of discovery and other pretrial proceedings.
Respectfully submitted,
/s/ Stephen Douglas Bonney
Stephen Douglas Bonney, KS Bar #12322
ACLU Foundation of Kansas
3601 Main Street
Kansas City, MO 64111
Tel.: (816) 994-3311; Fax: (816) 756-0136
email: dbonney@aclukansas.org
Mark P. Johnson, KS Bar #22289
Samantha J. Wenger, KS Bar #25322
Dentons US LLP
4520 Main Street, Suite 1100
Kansas City, MO 64111
Tel. : (816) 460-2400; Fax: (816) 531-7545
Email: mark.johnson@dentons.com
Joshua A. Block [admitted pro hac vice]
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: (212) 549-2593
email: jblock@aclu.org
ATTORNEYS FOR PLAINTIFFS
1

Although Defendant Court Clerks and some other Kansas district courts are issuing marriage
licenses to same-sex couples, they are doing so only in obedience to this Courts preliminary
injunction. Numerous other Kansas district courts are not issuing marriage licenses to same-sex
couples. Erin Matthews, First same-sex marriage license issued in Saline County, Salina
Journal, Feb. 10, 2015, available on-line at http://www.salina.com/news/local/first-same-sexmarriage-license-issued-in-saline-county/article_d01974c3-159f-5d15-8336-fde4b0af7522.html
(last checked Mar. 9, 2015) (reporting that at least thirty-nine county district courts in Kansas
continue to refuse to issue marriage licenses to same-sex couples). Thus, the entry of a
declaratory judgment declaring the Kansas constitutional provision and statutes that prohibit
same-sex marriage would have a profound effect on the rights of same-sex couples to due
process and equal protection.
3

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Certificate of Service
I certify that, on March 9, 2015, the foregoing document was served on counsel for all
defendants per the Courts ECF system.
/s/ Stephen Douglas Bonney