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8/10/2019 2:14-cv-02518 #57
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IN THE UNITED STATED DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN, )
and KERRY WILKS, Ph.D., and DONNA )
DITRANI, JAMES E. PETERS and GARY A. )MOHRMAN; CARRIE L. FOWLER and )
SARAH C. BRAUN; and DARCI JO )
BOHNENBLUST and JOLEEN M. )
HICKMAN, )Plaintiffs, ) Case No. 14-CV-2518-DDC-TJJ
v. )
)ROBERT MOSER, M.D., in his official capacity )
as Secretary of the Kansas Department of )
Health and Environment and )
DOUGLAS A. HAMILTON, in his official )Capacity as Clerk of the District Court for the 7th
)
Judicial District (Douglas county), and )
BERNIE LUMBRERAS, in her official capacity )as Clerk of the District Court for the 18
th )
Judicial District (Sedgwick County), )
NICK JORDAN, in his official capacity as )Secretary of the Kansas Department of Revenue, )
LISA KASPAR, in her official capacity as Director )
of the Kansas Department of Revenues Division )of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee )
Health Plan, )Defendants. )
_________________________________________)
MOTION OF DEFENDANT MOSER TO
DISMISS AMENDED COMPLAINT
Defendant Robert Moser, M.D. hereby moves for dismissal of all claims against him
based on lack of subject matter jurisdiction, including Eleventh Amendment immunity, lack of an
Article III case or controversy, and mootness.
1. Dr. Moser has resigned his position as Secretary of the Kansas Department of Health
and Environment, effective November 30, 2014. Because he no longer holds any
official position with the agency that supplies marriage-related forms to Kansas
1
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district courts, the relief sought against him is unavailable as a matter of law.
2. New gender-neutral forms have already been distributed by KDHE to Kansas district
courts for use by same-sex marriage applicants. Prospective injunctive relief is
therefore unavailable against Dr. Mosers successor.
3. For the reasons set forth in the motion to dismiss filed on behalf of the defendant
court clerks, the plaintiffs who seek relief against Dr. Moser lack Article III standing
to litigate the issues they raise. These plaintiffs have not taken advantage of their
opportunity to marry one another, despite the fact that the courts where they applied
for marriage licenses before filing suit are now accepting same-sex applications. Any
supposed controversy between these plaintiffs and any of the defendants is therefore a
sham. If these plaintiffs have taken advantage of the availability of the marriage
process in other counties, then their claims have become moot because they are no
longer unmarried persons.
4. Attached hereto are affidavits from the defendant court clerks, Dr. Moser, and Deputy
Chief Counsel Tim Keck setting forth the factual basis for the above defenses.
ARGUMENT AND AUTHORITIES
1. ELEVENTH AMENDMENT IMMUNITY
Federal courts are courts of limited jurisdiction. Lack of jurisdiction is presumed. The
burden of establishing federal court jurisdiction falls on the party asserting that jurisdiction exists.
SeeDevon Energy Production Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201
(10th
Cir. 2012);Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct.
1673, 1675, 128 L.Ed.2d 391 (1994). Invocation of the remedy of declaratory judgment does not
itself provide a basis for federal jurisdiction. See Cardtoons, L.C. v. Major League Baseball
2
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Players Ass'n, 95 F.3d 959, 964 (10th
Cir.1996).
A factual attack on the Courts jurisdiction is appropriately made in the form of a motion
to dismiss, even though matters outside the complaint are relied upon. When a factual attack is
made against the Courts subject matter jurisdiction, the Court is not required to assume the truth
of the complaints factual allegations. SeeRural Water Dist. No. 2 v. City of Glenpool, 698 F.3d
1270, 1272 (10th
Cir. 2012).
The Eleventh Amendment bars federal court lawsuits against a state or its officials acting
within their official capacities, with a narrow exception allowing for prospective injunctive relief
against individual officials for their ongoing violations of federal rights. SeeEx parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). No such prospective injunctive relief can be
obtained against Dr. Moser. When a claim for injunctive relief is brought against a state official
who is not involved in the enforcement of an allegedly unconstitutional statute, Eleventh
Amendment immunity applies and requires dismissal of the claim. SeePeterson v. Martinez, 707
F.3d 1197, 1205-1206 (10th
Cir. 2013).
2.
NO CASE OR CONTROVERSY
Dr. Moser no longer has any official capacity relating to the preparation and distribution
of Kansas marriage forms. If plaintiffs seek to amend to sue him in his individual capacity for
past acts, he will be protected by qualified immunity. See Guttman v. Khalsa, 669 F.3d 1101
(10th
Cir. 2012). Declaratory relief is not appropriate against him in these proceedings, because
plaintiffs have repeatedly claimed (and the Court has apparently agreed) that existing precedents
of the Tenth Circuit Court of Appeals control the outcome. As a general rule, where a law has
been declared unconstitutional by a controlling court, pending requests for identical declaratory
relief become moot. SeeBishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1269 (N.D. Okla.)
3
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aff'd sub nom.Bishop v. Smith, 760 F.3d 1070 (10th
Cir. 2014) cert. denied, 135 S. Ct. 271 (2014)
The sole claims now asserted against Dr. Moser are made by the original Plaintiffs, Marie,
Brown, Wilks and DiTrani. The allegations in the Complaint that they are being prevented from
seeking or receiving a license by these Clerks is demonstrably false, and is an apparent attempt
to create federal jurisdiction where none exists. The claim that any Kansas district court clerk is
acting under orders from Dr. Moser or any other KDHE executive director in deciding whether to
issue a marriage license to same-sex applicants is also a demonstrably incorrect statement of
Kansas law.
3. MOOTNESS
No Kansas statute requires the use of marriage-related forms that make explicit reference
to the sex of the applicants for a marriage license. Dr. Moser clearly had the discretion under
Kansas law to distribute gender-neutral forms, and he exercised that discretion shortly before he
left office. There is no reason to assume that his successors will recall the new forms. To the
extent that Dr. Moser was ever a proper party (a dubious conclusion at best) he certainly is not
now, nor would his successor be a proper party. Whatever supposed controversy may have
existed between plaintiffs and Dr. Moser is therefore undeniably moot.
Plaintiffs are not allowed to continue litigating a moot case just because they seek
declaratory relief:
[W]hat makes a declaratory judgment action a proper judicial resolution of a case or
controversy rather than an advisory opinion is the settling of some dispute which affects
the behavior of the defendant toward the plaintiff.Rio Grande Silvery Minnow, 601 F.3dat 110910. The crucial question is whether granting a present determination of the
issues offered will have some effect in the real world. Id. at 1110 (internal citation
omitted); see also Rezaq, 677 F.3d at 1008 ([I]n the context of an action for declaratory
relief, a plaintiff must be seeking more than a retrospective opinion that he was wronglyharmed by the defendant.); Wirsching, 360 F.3d at 1196 (same).
* * *
4
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[T]he possibility of recovering attorney fees or costs is not a sufficient reason to
enter judgment in an otherwise moot case. SeeR.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d
1103, 1108 (10th Cir.2007) (explaining that a claim of entitlement to attorney fees doesnot preserve a moot cause of action);In re West. Pac. Airlines, Inc., 181 F.3d 1191, 1196
(10th Cir.1999) (Precedent clearly indicates that an interest in attorney's fees is
insufficient to create an Article III case or controversy where a case or controversy doesnot exist on the merits of the underlying claim.). SeeBishop v. U.S. ex rel. Holder, 962
F. Supp. 2d 1252, 1269, 1271, (N.D. Okla.) aff'd sub nom. Bishop v. Smith, 760 F.3d
1070 (10th
Cir. 2014) cert. denied, 135 S. Ct. 271 (2014).
As the affidavits submitted by all defendants confirm, there was never any genuine grievance
involving Dr. Moser, whose role was not to enforce Kansas marriage laws by preventing district
court judges and clerks from accepting applications for same-sex marriages. The Court is not
obligated to entertain the fanciful view of Kansas marriage law set forth in the amended
complaint when the laws themselves and the persons involved in enforcing them plainly state
otherwise.
CONCLUSION
For all of the above stated reasons Dr. Moser should be dismissed from this litigation for
lack of subject matter jurisdiction under the Eleventh Amendment, lack of Article III standing,
and mootness of the supposed controversy.
Respectfully submitted,
OFFICE OF THE ATTORNEY GENERALDEREKSCHMIDT
s/Steve R. Fabert
Steve R. Fabert, #10355Assistant Attorney General
120 S.W. 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420Fax: (785) 296-6296
Email: [email protected] for Defendant Moser
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CERTIFICATE OF SERVICE
This is to certify that on this 18th
day of November, 2014, a true and correct copy of the
above and foregoing Answer was filed by electronic means via the Courts electronic filing sys-tem which serves a copy upon Plaintiffs counsel of record, Stephen Douglas Bonney, ACLU
Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and Mark P. Johnson, Dentons
US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111,[email protected]
[email protected] and Joshua A. Block, American Civil Liberties Foundation, 125Broad Street, 18
th Floor, New York, NY 100004,[email protected].
s/Steve R. FabertSteve R. Fabert
Attorney for Defendant Moser
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Address: City/State: Zip:
Email:
Self Father Paternal Uncle
Mother Brother Maternal Uncle
Sister Son Paternal Aunt
Current Spouse Daughter Maternal Aunt
arty ADate of Birth:
heck one: Bride______ Groom______ Spouse _______
arty
Date of Birth:
Check one: Bride______ Groom______ Spouse _______
$Total:
1)
2)
3)
4)
5)
City that Marriage took place:
Name of Record:MO/DAY/YEAR
Date of Marriage:
County that issued license:
FIRST MIDDLE LAST(maiden or previous married surname )
FIRST MIDDLE LAST
MONTH DAY YEAR
COUNTY STATE(MUST BE KANSAS)
MO/DAY/YEAR
Today's Date:
Maternal Grandparent
Other (specify)
Phone Number:
Application for Certified Copy of Kansas Marriage Certificate
This request form mustbe completed.
Enclose a copy of both front and back of a current legal photo ID (see back for list of acceptable ID
*Requirements-Read before turning in application
* IF THE CERTIFICATE IS NOT LOCATED, A $15.00 FEE MUST BE RETAINED BY THIS DEPARTMENT FOR THE RECORD SEARCH.
Make checks or money orders payable to Kansas Vital Statistics. For your protection, do not send cash.
FeesK.A.R. 28-17-6 requires the following fee(s).
The correct fee must be submitted with the request. The fee for certified copies of birth certificates is $15.00 for one certified copy and $15.0
each additional certified copy of the same record ordered at the same time. This fee allows a 5-year search of the records, including the ye
indicated plus two years before and two years after, or you may indicate the consecutive 5-year period you want searched. You may specify m
than one 5-year span, but each search will cost $15.00.
Marriage Information
(person requesting the certificate)
Name of Requestor:
Requestor's Signature:
Paternal Grandparent
Legal Guardian(submit custody order)
*IMPORTANT: The person requesting the vital record mustsubmit a copy of their identification. See list on reverse side.
Requestor's relationship to person on the Certificate? (Check one)
Reason for Request (PLEASE BE SPECIFIC):
Name of Record:
Walk-in Hours:
Phone: 785-296-1400Topeka, KS 66612-2221Monday-Friday9:00a.m.-4:00 p.m. 1000 SW Jackson Suite 120
* PLEASE NOTE MARRIAGE CERTIFICATES ARE ON FILE FROM May 1, 1913 TO PRESENT
*Request will be returned if the above steps are not completed correctly.
Enclose appropriate fees
Person requestingto receive a birth certificate must sign above.
If submitting by mail, enclose a self-addressed stamped envelope
$15 per Certified Copy
Office hours:(live phones)Kansas Office of Vital Statistics
Number of Copies Ordered:
Mon-Fri 8:00a.m.-5:00 p.m.
Form VS-237 rev 11
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Bureau of Indian Affairs Tribal ID card of Requestor
Inmate ID of Requestor(along with a memo completed and signed by a counselor or parole officer)
Niece/Nephew
Who's Eligible to Obtain Most Certificates: Must provide ID and proof of direct intRequestor's current ID required To Get a Certificate:
EligibilityONE form of Primary Documentation required from list below
Utility Bill with current address of Requestor and company letterhead with company name and address; not handwritten
Current Pay Stub (must include your name, social security number plus name and address of business; not handwritten)
Social Security card (must be signed by card holder)
Bank Statement with Requestor's current address
Car Registration or Title with Requestor's current address
* PLEASE NOTE MATRICULAS ARE NOT AN ACCEPTABLE FORM OF
D
If legal guardianship has been established through the courts, please provid
copy of the guardianship papers.
Resident Alien card
SiblingsRefugee Travel Document
Certificate of Naturalization (with intact photo)Concealed Carry handgun license
Mustbe age 18 or older
VA Card (with intact photo)
If you do not have a government issued photo ID, you must send photocopies of any two of the following: *Photocopies must
of the complete document, able to be read and be the Requestor's with current addressTemporary Driver's License
) FEES EXPIRE 12 MONTHS FROM THE DATE OF THE REQUEST.
) MULTIPLE REQUESTS FOR DIFFERENT RECORDS MAY BE HANDLED AND MAILED SEPARATELY.
WARNING: COPYING, ALTERING, or FRAUDULENT ACTIVITY PROHIBITED
Except as authorized by the Uniform Vital Statistics Act, no person shall prepare or issue any certificate (vital record) which purports to be a
original, certified copy or abstract or copy of a certificate [K.S.A. 652422d.(g)]. Vital records identity theft related to obtaining certificates
making, counterfeiting, altering, amending any certified copy of a vital record with the intent to sell or obtain for any purpose of deception a certi
copy of a vital record is a severity level 8, nonperson felony. [K.S.A. 21-3830a (d) and K.S.A 21-3830a (e)].
Letter from employer (with Requestor's current address)
U.S. Voters registration card of Requestor
Filed Income Tax of Requestor with current address
Letter to Requestor from Social Service Agency/Health Department or other government agency with current address
Hospital or Health agency bill (with current address) of Requestor
Court Documents of Requestor
W-2 from Employer (with Requestor's current address)
Read: IMPORTANT MISCELLANEOUS INFORMATION
Valid insurance card or policy of Requestor
Valid health insurance card or policy of Requestor
Parole document (book sheet) of Requestor
By State law, vital records filed with this office are not open for public inspec
and the requestor must meet eligibility requirements -- must be named on
record, an immediate family member, or someone who can provide legal pr
the record is necessary for the determination of personal or property right
[K.S.A. 65-2422d]
Parents
Please make a copy of one of the following documents and send
with the application. All documents MUST be signed, current
nd valid. All Identification must have both sides and be able to
be read.
Voter's registration card (Countries outside of the U.S.)
Aunts/Uncles
Photocopy of Government Issued Driver's License, Military ID,
tate ID card, Valid Passport and Visa's. (Not the credit/debit
ard)
Permanent resident card
Alien registration receipt card
Employment authorization card
Re-entry permit
Current Spouse
Adult Children
Grandparents
Detailed Information
Identification
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VS244 Rev. 11/12/2014 Page 1 of 2
KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENTOffice of Vital Statistics
Worksheet for Marriage Registration
This worksheet is to be completed by the couple and returned to the district court before the marriage license can be issued. This information will be used tocomplete the official marriage license form.
License number(court use only) _________________________
PARTY A: Check One: Groom Bride Spouse (This is the label that will appear on the marriage license.)
1. LEGAL NAMEFIRST MIDDLE LAST SUFFIX
2. LAST NAME PRIOR TO FIRST MARRIAGE (If different) 3. DATE OF BIRTH (Month, Day, Year) 4. BIRTHPLACE (State or Foreign Country)
5. RESIDENCESTATE OR FOREIGN COUNTRY 6. COUNTY OR PROVINCE 7. CITY OR TOWN
8. FATHER/PARENT NAMEPRIOR TO FIRST MARRIAGE(First, Middle, Last)
9. BIRTHPLACE (State orForeign Country)
10. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)
11. BIRTHPLACE (State orForeign Country)
PARTY B: Check One: Groom Bride Spouse (This is the label that will appear on the marriage license.)12. LEGAL NAME- FIRST MIDDLE LAST SUFFIX
13. LAST NAME PRIOR TO FIRST MARRIAGE (If different) 14. DATE OF BIRTH (Month, Day, Year) 15. BIRTHPLACE (State or Foreign Country)
16. RESIDENCESTATE OR FOREIGN COUNTRY 17. COUNTY OR PROVINCE 18. CITY OR TOWN
19. FATHER/PARENT NAMEPRIOR TO FIRST MARRIAGE(First, Middle, Last)
21. BIRTHPLACE (State orForeign Country)
22. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)
23. BIRTHPLACE (State orForeign Country)
If one or both applicants are under 18, this information is required:
24a. PARTY A - MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable) 24c. PARTY B - MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable)
24b. PARTY A - FATHER/PARENT OR GUARDIAN CONSENTING (If applicable) 24d. PARTY B - FATHER/PARENT OR GUARDIAN CONSENTING (If applicable)
24e. HAVE ALL LIVING PARENT(S) OR GUARDIAN(S) CONSENTED?
PARTY A
Yes No Emancipated Parent(s) Deceased
PARTY B
Yes No Emancipated Parent(s) Deceased
24f. NAME OF CONSENTING JUDGE (If applicable)(Court use only)
The ceremony is expected to be performed by:
25. NAME OF PERSON PERFORMING CEREMONY (Please type or print) 26. TITLE
27. ADDRESS OF PERSON PERFORMING CEREMONY (Street and No. or Rural Route, City or Town, State, Zip Code)
This section is to be completed if either party desires to designate a new legal name at the time of marriage.
28. PARTY A: NAME- FIRST MIDDLE LAST
29. PARTY B: NAME- FIRST MIDDLE LAST
COMPLETE ADDITIONAL INFORMATION ON BACK AND PROVIDE SIGNATURE
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Page 2 of 2
This information is strictly confidential and is not released in identifiable form.30. NUMBER OF THIS MARRIAGE First, Second,
etc. (Specify below)31. IF PREVIOUSLY MARRIED, LAST MARRIAGE ENDED
SOCIAL SECURITY NUMBERSBy Death, Divorce, or Annulment (Specify below) Date (Month, Day, Year)
30a. PARTY A 31a. PARTY A 31b PARTY A 32. PARTY A - SOCIAL SECURITY NUMBER
30b. PARTY B 31c. PARTY B 31d. PARTY B 33. PARTY B - SOCIAL SECURITY NUMBER
34. COUPLES HISPANIC ORIGIN (Check the box or boxes thatbest describes whether you are Spanish, Hispanic, or Latino.Check the no box if you are not Spanish, Hispanic or Latino.)
35. COUPLES RACE (Check one or more boxes to indicate what race(s) you consider yourself to be.)
35a. PARTY A
White Korean
Blackor VietnameseAfrican American
American Indian or Other Asian (Specify)Alaska Native(Name of the enrolledor principal tribes)
Native Hawaiian
Asian Indian Guamanian or Chamorro
Chinese Samoan
Filipino Other Pacific Islander(Specify)
Japanese
Other (Specify)
Unknown
35b. PARTY B
White Korean
Blackor VietnameseAfrican American
American Indian or Other Asian (Specify)Alaska Native(Name of the enrolledor principal tribes)
Native Hawaiian
Asian Indian Guamanian or Chamorro
Chinese Samoan
Filipino Other Pacific Islander(Specify)
Japanese
Other (Specify)
Unknown
34a. PARTY A
No, not Spanish/Hispanic/Latino
Yes, Mexican/MexicanAmerican/Chicano
Yes, Puerto Rican Yes, Cuban Yes, Central American Yes, South American Yes, other Spanish/
Hispanic/Latino
(Specify)
Unknown
34b. PARTY B
No, not Spanish/Hispanic/Latina
Yes, Mexican/MexicanAmerican/Chicana
Yes, Puerto Rican Yes, Cuban Yes, Central American Yes, South American Yes, other Spanish/
Hispanic/Latina
(Specify)
Unknown
36. EDUCATION (Check the box that best describes the highest degree or level of school completed.)
36a. PARTY A - EDUCATION 8thgrade or less 9th- 12thgrade; no diploma High school graduate or GEDSome College credit, but no degree Associate degree (e.g., AA,AS) Bachelors degree (e.g., BA, AB, BS)
Unknown Masters degree (e.g., MA, MS, MEng, MEd, MSW, MBA) Doctorate (e.g., PhD, EdD) or Professional degree (e.g., MD, DDS, DVM, LLB, JD)36b. PARTY B - EDUCATION 8thgrade or less 9th- 12thgrade; no diploma High school graduate or GED
Some College credit, but no degree Associate degree (e.g., AA,AS) Bachelors degree (e.g., BA, AB, BS) Unknown Masters degree (e.g., MA, MS, MEng, MEd, MSW, MBA) Doctorate (e.g., PhD, EdD) or Professional degree (e.g., MD, DDS, DVM, LLB, JD)
PARTY AGENDER
Male Female
PARTY BGENDER
Male Female
The information provided by:
PARTY ASIGNATURE
The information provided by:
PARTY B SIGNATURE
Party A Current Address and Daytime Telephone Number Party B Current Address and Daytime Telephone Number
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VS229 SML Rev. 11/12/2014
STATE OF KANSASDEPARTMENT OF HEALTH AND ENVIRONMENT
Office of Vital Statistics
Marriage LicenseState File number
1. LEGALNAME FIRST MIDDLE LAST/SUFFIX
2. LAST NAME PRIOR TO FIRST MARRIAGE (If different) 3.DATE OF BIRTH (Month, Day, Year) RESIDENCE STATEOR FOREIGN COUNTRY
4. BIRTHPLACE (State or Foreign Country)
5. RESIDENCE STATE OR FOREIGN COUNTRY 6. COUNTY OR PROVINCE 7. CITY OR TOWN
8. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)
9. BIRTHPLACE (State orForeign Country)
10. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)
11. BIRTHPLACE (State orForeign Country)
12. LEGAL NAME- FIRST MIDDLE LAST/SUFFIX
13. LAST NAME PRIOR TO FIRST MARRIAGE (If different) 14. DATE OF BIRTH (Month, Day, Year) 15. BIRTHPLACE (State or Foreign Country)
16. RESIDENCE STATE OR FOREIGN COUNTRY 17. COUNTY OR PROVINCE 18. CITY OR TOWN
19. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)
20. BIRTHPLACE (State orForeign Country)
21. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE(First, Middle, Last)
22. BIRTHPLACE (State orForeign Country)
23a. MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print) 23c. MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)
23b. FATHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print) 23d. FATHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)
23e. HAVE ALL LIVING PARENT(S) OR GUARDIAN(S) CONSENTED?
Yes No Emancipated Parent(s) Deceased YesNo Emancipated Parent(s) Deceased
23f. NAME OF CONSENTING JUDGE (If applicable, please type or print)
Completed marriage license is to be returned to Issuing District Court within 10 days after marriage:
24. DISTRICT COURT OF ISSUANCE 25. DATE LICENSE ISSUED (Month, Day, Year) 26. EXPIRATION DATE (Month, Day, Year)
27. ISSUING OFFICIAL 28. TITLE OF ISSUING OFFICIAL 29. DATE RECEIVED BY COURT OFFICIAL
This License Authorizes the Marriage in This State of the Parties Named Above By Any Person Duly Authorized to Perform a Marriage Ceremony Under the Laws of the State of Kansas.
30. I CERTIFY THAT THE ABOVE NAMED PERSONSWERE MARRIED ON: (Month, Day, Year)
31. WHERE MARRIED COUNTY 32. CITY OR TOWN
33. SIGNATURE OF PERSON PERFORMING CEREMONY 34. NAME AND PHONE NO. OF PERSON PERFORMING CEREMONY (Please type or print) 35. TITLE
36. ADDRESS OF PERSON PERFORMING CEREMONY (Street and No. or Rural Route, City or Town, State, Zip Code)
37. WITNESS NAME TO CEREMONY (Print or Type) 38. WITNESS NAME TO CEREMONY (Print or Type)
Designated new l egal name pursuant to K.S.A. 23-2506. (If applicable)
38. NAME FIRST MIDDLE LAST
39. NAME FIRST MIDDLE LAST
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GROOM
BRIDE
GROOM
GROOM
BRIDE
BRIDE
GROOM BRIDE
GROOM
BRIDE
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AFFIDAVIT OF BERNIE LUMBRERAS
STATE OF KANSAS
)
) ss:
COUNTY OF SEDGWICK )
I,
Bernie Lumbreras, being first duly sworn, on oath, depose and say that:
1. I am the Clerk o the District Court o Sedgwick County, Kansas, Eighteenth
Judicial District. I was appointed to this position on December 18, 2005. In that
capacity, I supervise deputy clerks in performing the functions imposed by law
on clerks o the district court in Kansas. My deputy clerks and I are judicial
officers o the State o Kansas and are employed by the State o Kansas as part o
the Kansas Judicial Branch.
2.
As clerks o the court, we perform our duties in accordance with legal
requirements as per K.S.A. 20-3102 and as communicated to us under the
supervision
o
the Chief Judge, at this point, Chief Judge James R. Fleetwood.
3.
One o the functions o my office is to issue marriage licenses as per K.S.A.
2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may
be issued by either judges or clerks. In performing this function, I and the clerks
operating under my supervision act as an aide to the twenty-eight (28) judges o
the 18th Judicial District who would otherwise be performing this function.
4. there is a question about whether a person is legally entitled to a marriage
license, the applicant is referred to a judge for determination.
5.
On November 13,2014, Judge Fleetwood issued Administrative Order 14-08, a
certified copy o which is attached as Exhibit A hereto. In that Order, Judge
Fleetwood directs the Clerks to issue marriage licenses without consideration o
gender o the applicants.
6. According to records maintained in my office, the Plaintiffs in this case, Kerry
Wilks and Donna DiTrani, applied for a marriage license on October 9,2014.
We did take the application on that date. We keep applications on file for one
year.
7. To date, neither Wilks nor DiTrani have returned to the Clerk's Office to submit
a completed worksheet
or
to request issuance o a marriage license.
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8. My Office has no record of ail Marie
or
Michelle L Brown having appeared in
my office to apply for a marriage license.
9.
Except for recognized holidays, my Office is open for business, induding but not
limited to accepting applications for marriage licenses and issuing licenses, every
week day from 8 a.m. to 4 p.m.
FURTHER AFFIANT SAITH NOT.
Bernie Lumbreras
Subscribed and Sworn to before the undersigned this
of
December,
2014.
NOTARY
PUBLIC
State of
Kansas
TINA L HARRIS N
= y Appt Expires I k ~ ~ J
_
Notary Public
My Appointment Expires:
/1
/10/ ;101 ;;-
I I
2
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IN TH UNITED STATED DISTRICT COURT
FOR TH DISTRICT OF KANSAS
KAIL MARIE and MICHELLE
L.
BROWN,
and KERRY WILKS, Ph.D., and DONNA
)
DITRANI,
)
Plaintiffs,
) Case No. 14-CV-2518-DDC-TJJ
v.
)
)
ROBERT MOSER, M.D., in his official capacity
as Secretary of the Kansas Department of
)
Health and Environment and
)
DOUGLAS A HAMILTON, in his official
Capacity as Clerk
of
the District Court for the
th
)
Judicial District (Douglas county), and
BERNIE LUMBRERAS, in her official capacity
as Clerk of the District Court for the 18
th
)
Judicial District (Sedgwick County),
)
Defendants.
)
)
AFFIDAVIT
OF
BERNIE LUMBRERAS
STATE OF KANSAS
) ss:
COUNTY OF SEDGWICK
)
I, Bernie Lumbreras, being first duly sworn, on oath, depose and say that:
1.
I am the Clerk of the District Court
of
Sedgwick County, Kansas, Eighteenth
Judicial District. I was appointed to this position on December 18, 2005. In that
capacity, I supervise deputy clerks in performing the functions imposed by law
on clerks of the district court in Kansas. My deputy clerks and I are judicial
officers of the State of Kansas and are employed
by
the State
of
Kansas as part
of
the Kansas Judicial Branch.
2. Neither I nor the clerks operating under my supervision discriminate against any
person or operate under any sort ofpersonal beliefor animus. We perform our
duties in accordance with legal requirements as per K.S.A. 20-3102 and as
1
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communicated to us under the supervision
of
the
Chief
Judge, at this point,
Chief
Judge James R. Fleetwood.
3. One
of
the functions
of
my office is to issue marriage licenses as per K.S.A.
2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may
be issued by either judges
or
clerks. In performing this function, I and the clerks
operating under my supervision act as an aide to the twenty-eight (28) judges
of
the 18th Judicial District who would otherwise be performing this function.
4. there is a question about whether a person is legally entitled to a marriage
license, the applicant is referred to a judge for determination.
5.
I do not authorize persons to perform marriage rites; the Clerks have no role in
the function set forth in K.S.A. 2014 Supp. 23-2504.
6. Any determination as to the issuance
of
a license to Kerry Wilks
or
Donna
DiTrani was made
by Chief
Judge James R Fleetwood or Judge Eric Yost acting
in
Chief
Judge Fleetwood's absence. t was not made by me
or
by
my
clerks.
7. My office is also in compliance with the Supreme Court s October
10,2014,
Order in State ex rei Schmidt
v
Moriarty which is consistent with the directions
of Chief
Judge Fleetwood.
8. Neither I nor my clerks have any role in deciding whether a person is authorized
to file a joint tax return in Kansas.
9. Neither I nor
my
clerks have any role in determining whether a person is entitled
to inherit property through intestate succession in Kansas.
FURTHER AFFIANT SAITH NOT.
Bernie Lumbreras
9
Subscribed and Sworn to before the undersigned this
0
-
day
of
October, 2014.
C ~ a d
o
ubc
My Appointment Expires:
:? -/-18
CATHY STEPPPRATT
NOTARY PUBLIC
STATE OF KANSAS
My Appl Exp . .3
1 18
2
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-
4MV 6 8
. ~ - f L 9 . ./\
18
th
A P P 8 ~ t ( l l 1 Rm ff '
JUDICIAL DISTRICT
ADMINISTRATIVE ORDER It { - t : s
lll
OY
3 A
II: 25
Now
on
this
13
th
day
o
November. 2014 the matter comes before
.
Judge of the 18
th
Judicial District. concerning the issuance of same sex
n f : r r i a g ~ niJ
licenses. As Chief Judge it is recognized that a suit naming
the
clerk of the 18
th
judicial
district
as a party has been brought in the United States District Court for the District of
Kansas
challenging the constitutionality Article 15 Section
16
o the Kansas
Constitution that prohibits
the
issuance of
same sex
marriage licenses
in
the State of
Kansas.
Said legal action
is
known as
ail
Marie
et
aI v.
Robert Moser
et
al.
In
Kail
Marie
the United States District Court issued an injunction prohibiting the
Clerk of the Court o Douglass
and
Sedgwick County, Kansas from denying the
marriage applications of same sex couples. Central
to
the court's ruling was a finding
that the continual denial of said license
was
a violation of the United States Constitution
because it resulted in discrimination and a violation of the equal protection clause of the
constitution.
Appeal
from
this order
was
taken to
the
10
th
Circuit Court of Appeals. A panel of
the
10
th
Circuit Court of Appeals affirmed
the
action of the District Court. This issue was
then
appealed to
the
United
States Supreme
Court.
By a
vote
o seven to
two
The
United
States Supreme Court
refused
to grant a further stay of the original order
prohibiting the issuance of same sex marriage licenses
in the
State of Kansas. The
order of
the
United States Supreme Court directs the State of Kansas
and
parties
to
the
Kail Marie
lawsuit to issue marriage licenses to same sex couples.
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Therefore the clerk of the court
and
her staff are hereby ordered
and
directed to
issue
marriage licenses without consideration of gender of the applicants in accordance
with the order of the United States Supreme Court and to otherwise comply with
all
other requirements related to issuing
said
marriage licenses generally.
IT IS
SO ORDERED
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