2:14-cv-02518 #115

Case 2:14-cv-02518-DDC-TJJ Document 115 Filed 04/13/15 Page 1 of 49
IN THE UNITED STATES 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.
)
_________________________________________ )
RESPONSE OF DEFENDANTS TO
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
Defendants oppose plaintiffs motion for summary judgment. The discovery record
affirmatively establishes that the wrong plaintiffs have sued the wrong defendants for relief that
is not available in this Court. No plaintiff is suffering an impairment of federally protected rights
at the hands of any of the defendants.
1
The motion for summary judgment does not present a prima facie right to the relief
sought and so would not be grantable even if no defendant responded to it. The motion for
summary judgment contains no argument or authorities that discuss a plaintiffs burden of proof
in a case seeking to declare a wide array of laws, most of which are not specified, facially
unconstitutional. No facially unconstitutional Kansas law is identified in the motion. The official
actions about which the various plaintiffs complain are not objectionable under any existing
federal law. These plaintiffs have no right to sue for the abstract impairment of assumed rights
that would belong to others if such supposed constitutional rights were ever established. They
have no right to enjoin by category the enforcement of every state law that they would prefer not
to obey.
The motion for summary judgment is no more than a laundry list of special privileges
desired by plaintiffs. None of the defendants is preventing any plaintiff from marrying a spouse
of choice in Kansas. There is no present case or controversy between the original four plaintiffs
and any defendant. There is no present case or controversy against Susan Mosier, whose office is
not a participant in any grievance described in the First Amended Complaint. Any supposed
grievance against the other three defendants is beyond this Courts subject matter jurisdiction.
The relief requested here should instead be sought in a state forum.
None of the plaintiffs is inconvenienced by rules that do not apply to them. There is no
justiciable claim for allegedly discriminatory paperwork burdens in the operation of the Kansas
personal income tax self-assessment process due to the Tax Injunction Act, and even if the Court
had jurisdiction to entertain that claim it would fail on the merits because no plaintiff whose
rights are burdened by the offending rule is a party to this case. There is no constitutional right to
2
obtain a driver license using an alias of choice, and no Kansas law prohibiting that result is being
discriminatorily applied to any plaintiff. There is no constitutional right to be insured under a
spouses employment-related health insurance policy, and no Kansas law relating to that subject
is being discriminatorily applied to any plaintiff by any defendant. This Court lacks jurisdiction
to order the State of Kansas or any of its agencies to pay any plaintiffs medical bills.
RESPONSE TO STATEMENT OF MATERIAL FACTS
Defendants object to the employment of hearsay affidavits in support of the motion for
summary judgment. The only evidentiary matters offered in support of the motion are the
declarations of plaintiffs themselves, who are not competent to testify to most of what the
declarations contain. Fed R. Civ. P. 56(c)(4) requires that an affidavit or declaration used to
support or oppose a motion for summary judgment must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
District Court Rule 56.1(d) requires that all
declarations offered in support of a motion for summary judgment must be made on personal
knowledge and by a person competent to testify to the facts stated that are admissible in
evidence. Both the Court and opposing parties are free to deem any matter that is supported
solely by incompetent declarations filled with inadmissible hearsay as wholly unsupported. See
McCleary v. Nat'l Cold Storage, Inc., 67 F. Supp. 2d 1288, 1299 (D. Kan. 1999) at footnote 3.
RESPONSE TO PLAINTIFFS ENUMERATED FACTS
1. Controverted. Paragraph one is not a statement of fact, but a legal argument concerning the
sufficiency of the First Amended Complaint to state claims that are so broadly described. The
First Amended Complaint relates exclusively to declaratory and injunctive relief grantable
3
against the six named defendants, not universal relief addressed to every unidentified practice
of anyone and everyone employed by the State of Kansas.
2. Controverted in part. The first sentence of paragraph two is not material to any issue
addressed in the motion for summary judgment. The second sentence is controverted by the
second declarations of Marie and Brown, who state that they have no present intention of
seeking a Kansas marriage license and will not seek any such license during the pendency of
this litigation. (Second Declaration of Marie, 7; Second Declaration of Brown, 7.) Both
Marie and Brown are free to obtain marriage licenses from Kansas court clerks at any time
during the pendency of this litigation, according to the affidavits of Hamilton and Lumbreras
filed in support of those defendants motion to dismiss. Plaintiffs Marie and Brown have
testified that they have no intention to make any effort to obtain a Kansas marriage license
during the pendency of this lawsuit, including any appeals, and that they will not do so after
the litigation is completed if all of the requested relief is not granted and even private
organizations that are not parties begin to recognize same-sex marriages. (Marie depo. pp.
27, 37-38; Brown depo. pp. 25-30).
3. Controverted in part. The first sentence of paragraph three is not material to any issue
addressed in the motion for summary judgment. The second sentence is controverted by the
second declarations of Wilks and DiTrani, who state that they have no present intention of
seeking a Kansas marriage license and will not seek any such license during the pendency of
this litigation. (Second Declaration of Wilks, 7; Second Declaration of DiTrani, 7). Wilks
and DiTrani are free to obtain marriage licenses from Kansas court clerks at any time during
the pendency of this litigation, according to the affidavits of Hamilton and Lumbreras filed in
4
support of those defendants motion to dismiss. Plaintiffs Wilks and DiTrani have testified
that they have no intention to make any effort to obtain a Kansas marriage license during the
pendency of this lawsuit, including any appeals, and that they will not do so after the
litigation is completed if all of the requested relief is not granted. (DiTrani depo. pp. 18-19,
24-25; Wilks depo. pp. 53-54, 57-59)
4. Uncontroverted.
5. Uncontroverted.
6. Uncontroverted.
7. Uncontroverted.
8. Uncontroverted.
9. Uncontroverted.
10. Controverted in part. Plaintiffs paragraph 10 is incomplete as it does not include all of the
language of K.S.A. 23-2505(a) (2014 Supp.), which speaks for itself and must be read in its
entirety, including along with and in conjunction with all of the other statutes under Article
23 which inform its contents. Plaintiffs paragraph 10 cites the 2007 edition of the statute
which has since been amended.
11. Controverted. Plaintiffs attempts to paraphrase the Kansas statutes in question are incorrect
and incomplete and are not supported by the citation to the statutes in question, which have
been amended since the 2007 version cited by Plaintiffs and which speak for themselves as to
their respective contents.
12. Controverted, but also not material. Plaintiffs have not returned to the Clerks Offices to
comply with all of the requirements for issuance of a license, including submission of all
5
required documentation, including the worksheet, and the tender of required fees. Affidavit
of Douglas Hamilton, Dec. 10, 2014 (Doc. 59-1), at 7; Affidavit of Bernie Lumbreras, Dec.
10, 2014 (Doc. 59-2), at 7-8. The stated fact is also not material because the Second
Declarations of Marie and Brown state that they have no present intention of seeking a
Kansas marriage license and will not seek any such license during the pendency of this
litigation, as do the Second Declarations of DiTrani and Wilks (Second Declaration of Marie,
(Doc. 86-6), at 7; Second Declaration of Brown (Doc. 86-7), 7; Second Declaration of
DiTrani (86-9), 6; Second Declaration of Wilks (Doc. 86-8), 6). Marie, Brown, DiTrani
and Wilks are free to obtain marriage licenses from Kansas court clerks at any time during
the pendency of this litigation, according to the affidavits of Hamilton and Lumbreras filed in
support of those defendants motion to dismiss. Plaintiffs Marie and Brown have testified
that they have no intention to make any effort to obtain a Kansas marriage license during the
pendency of this lawsuit, including any appeals, and that they will not do so after the
litigation is completed if all of the requested relief is not granted and even private
organizations that are not parties begin to recognize same-sex marriages. (Marie Depo. pp.
27, 37-38; Brown Depo. pp. 25-30; DiTrani depo. pp. 18-19, 24-25; Wilks depo. pp. 53-54,
57-59).
13. Uncontroverted but not material as Plaintiffs have since indicated they have no present
intention of seeking a marriage license and will not seek any such license during the
pendency of this litigation. (Second Declaration of Marie, (Doc. 86-6), at 7; Second
Declaration of Brown (Doc. 86-7), Plaintiffs have not returned to the Clerks Office to
tender the worksheet or the required fee or to pick up the marriage license, Affidavit of
6
Douglas A. Hamilton (Doc. 59-1), at 6, and as of November 13, 2014, Administrative

Order 14-17 has been entered in the 7th Judicial District, superseding the Administrative
Order in effect on October 8, 2014. Id. (at 4, citing Admin Order 14-17, attached thereto).
14. Controverted in part, but also irrelevant and immaterial as Administrative Order 14-13 has
been withdrawn and superseded by Administrative Order 14-17, entered on or about
November 13, 2014. Although immaterial, the stated fact is controverted as Administrative
Order 14-13, which speaks for itself as to its contents, was filed on October 8, 2014 and
reflects Chief Judge Fairchilds legal determination that Thomas Tuozzo and Robert
Hedlunds application, which had been referred to Chief Judge Fairchild for determination,
could not be granted because of Judge Fairchilds determination of Kansas law. Chief Judge
Fairchild did order as follows: The Clerk of the District Court shall not issue a marriage
license to these applicants or to any other applicants of the same sex. When the Clerk rejects
the application, the clerk shall give the applicants a copy of this order.
It is also
controverted that Judge Fairchilds determination of legal entitlement was ministerial, as

the Kansas Supreme Court has held that this determination was a judicial determination.
State ex rel. Schmidt v. Moriarty, No. 112,590, at 4-5 (Doc. 59-6).
15. Uncontroverted for purposes of this motion but also not material because the Second
Declarations of Marie and Brown state that they have no present intention of seeking a
Kansas marriage license and will not seek any such license during the pendency of this
litigation (Second Declaration of Marie, (Doc. 86-6), at 7; Second Declaration of Brown
(Doc. 86-7), 7.
16. Controverted in part. Although the application was signed, it was not completely filled out.
The stated fact is also controverted to the extent that the fact states or implies that any
determination on same-sex marriage licenses was made by a clerk rather than a judge.
Answer of Defendants Hamilton and Lumbreras (Doc. 49), at 12; Affidavit of Bernie
Lumbreras (Doc. 59-5), at 6; Affidavit of Bernie Lumbreras (Doc. 59-2). The stated fact is
also not material for reasons including that Plaintiffs Wilks and DiTrani have indicated they
have no present intention to seek a marriage license during the pendency of this litigation
(Second Declaration of DiTrani (86-9), 6; Second Declaration of Wilks (Doc. 86-8), 6). It
is also not material because Wilks and DiTrani have not returned to submit a completed
worksheet as required, pick up the marriage license or tender the required fee or otherwise
apply or re-apply for such license. Affidavit of Bernie Lumbreras (Doc. 59-2, at 7). It is
also not material because on November 13, 2014, Chief Judge James Fleetwood entered
Administrative Order 14-08 in the 18th Judicial District regarding issuance of same-sex
marriage licenses.
17. Uncontroverted that this Court issued a Memorandum and Order (Doc. 29), but controverted
that plaintiffs stated fact correctly characterizes the contents of the Order or the Order
language which speaks for itself.
18. Uncontroverted but not material.
20. Uncontroverted that Chief Judge Fairchild issued Administrative Order 14-17 and that Chief
Judge Fleetwood issued Administrative Order 14-03 and uncontroverted that district court
clerks in the 7th and 18th judicial districts are issuing marriage licenses to same-sex applicants
8
but controverted that the orders were issued because of the preliminary injunction or only
exist because of the preliminary injunction of this Court for reasons including that Chief
Judge Fairchild and Fleetwood were not named parties or defendants. The statement of
causation is also controverted in that the Chief Judges are subject to orders of the Supreme
Court including those issued in State ex. rel. Schmidt v. Moriarty, 112,590. The Supreme
Courts Orders in State ex rel. Schmidt v. Moriarty are subject to judicial notice as per Fed. R.
Evid. 201(b).
21. Controverted in part. It is uncontroverted that these four plaintiffs have not applied for and
have no intention to apply for marriage licenses from any Kansas court clerk during the
pendency of this litigation. Plaintiffs do not allege that they intend in the future to apply to
any named defendant in this case for a marriage license at any time. (Second declarations of
Marie, Brown, Wilks, and DiTrani at paragraph 7; Plaintiffs response to Stipulations #116
and #123).
22. Uncontroverted but not material. In this lawsuit 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). (Plaintiffs response to
Stipulation #1)
23. Uncontroverted but not material. In this lawsuit 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). (Plaintiffs response to
Stipulation #1)
24. Uncontroverted.
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27. Uncontroverted.
28. Uncontroverted but not material. No plaintiffs making a claim against defendant Jordan
allege that they have ever filed a joint income tax return or that they plan to file a joint
income tax return.
29. Controverted. Same sex married couples who file their federal income tax returns separately
are not required to submit any more state tax forms than a similarly situated heterosexual
married couple file. The tax notice relied upon by plaintiffs would not impose any paperwork
burden on plaintiffs in addition to what a similarly situated heterosexual couple would
provide. (Plaintiffs responses to Stipulations #52 and 53; affidavit of Richard Cram)
are not required to submit any more state tax forms than a similarly situated heterosexual
married couple file. The tax notice relied upon by plaintiffs would not impose any paperwork
burden on plaintiffs in addition to what a similarly situated heterosexual couple would
provide. (Plaintiffs responses to Stipulations #52 and 53; affidavit of Richard Cram)
31. Uncontroverted.
are not required to submit any state tax forms in addition to those that a similarly situated
heterosexual married couple file. The tax notice relied upon by plaintiffs would not impose
any paperwork burden on plaintiffs in addition to what a similarly situated heterosexual
10
couple would provide. (Plaintiffs responses to Stipulations #52 and 53; affidavit of Richard
Cram)
33. Uncontroverted.
34. Uncontroverted.
35. Controverted. The paragraph misstates the substance of the referenced laws. Kansas law does
not require the issuance of a new driver license in any arbitrarily selected name, just because
a married person prefers to be known by that name. The Kansas driver license issued to each
of the plaintiffs in this case shows that persons legal name as required by all relevant state
and federal laws. (DL documents produced in response to defendants requests for
production.) No plaintiff in this case alleges facts that would trigger an obligation to issue a
new driver license pursuant to Kansas laws. (Affidavit of Timothy Parks)
11
39. Controverted. Plaintiffs Fowler, Bohenblust, and Hickman have filed this lawsuit using these
surnames, which is prima facie evidence that their legal names are the ones appearing in the
case caption rather than the pseudonyms they allege they would now prefer to employ. These
plaintiffs continue to use some identification documents using the surnames that appear in
the case caption. See deposition exhibits attached to the transcripts of the Fowler/Braun,
Bohnenblust/Pottroff, and Hickman/Spain depositions.
40. Controverted. K.S.A. 23-2506 on its face states that it permits issuance of a driver license in
a new name acquired by marriage only if the marriage is performed under Kansas law.
41. Controverted in part. It is uncontroverted that plaintiffs Bohnenblust and Hickman seek to
restore their premarital birth names by misusing the provisions of K.S.A. 23-2506. This
technique is not permitted by Kansas law, which allows only the adoption of a new name, not
reversion to an old name previously used by the applicant. Neither a heterosexual couple nor
12
a homosexual couple would be allowed to achieve the result sought by these plaintiffs.
(Affidavit of Timothy Parks)
case caption rather than the pseudonyms they allege they would prefer to employ. These
Bohnenblust/Pottroff, and Hickman/Spain depositions. K.S.A. 23-2506 permits issuance of a
driver license in a new name acquired by marriage only if the marriage is performed under
Kansas law.
13
Kansas law.
Kansas law.
47. Controverted. The paragraph misstates the substance of the controlling regulation,
K.A.R.108-1-1, as amended effective January 2, 2015. The regulation requires that the status
of dependent spouse be determined under Kansas law, not the law of any other state. The
regulation has no language expressly determining whether a spouse can or cannot be a person
of the same sex as the employee requesting to add the dependent spouse. (Mike Michael
affidavit)
14
48. Uncontroverted.
49. Uncontroverted.
50. Controverted. Employee dependent eligibility is controlled by the provisions of K.A.R.1081-1, as amended effective January 2, 2015. The regulation requires that the status of
dependent spouse be determined under Kansas law, not the law of any other state. The
regulation has no language expressly determining whether a spouse can or cannot be a person
of the same sex as the employee requesting to add the dependent spouse. (Mike Michael
affidavit)
51. Uncontroverted.
52. Uncontroverted.
53. Uncontroverted.
54. Controverted. Peters alleges he was married in Iowa, not in Kansas, so his purported spouse
could not qualify as an insurable dependent under Kansas law as authorized by 28 U.S.C.
1738C. 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). (Plaintiffs response to Stipulation #1)
55. Controverted. Peters alleges he was married in Iowa, not in Kansas, so his purported spouse
could not qualify as an insurable dependent under Kansas law as authorized by 28 U.S.C.
1738C. Plaintiffs are not challenging the constitutionality of the federal law that allows a
1738C (1996). (Plaintiffs response to Stipulation #1)
56. Controverted. Neither Defendant Michael nor anyone employed in his agency has authority
15
to decide constitutional challenges to Kansas laws or administrative regulations. Any state

employee who wishes to challenge the constitutionality of a statute or regulation would need
to obtain a judgment from a court of competent jurisdiction. (Mike Michael affidavit)
LOCAL RULE 56.1(b)(2) STATEMENT OF ADDITIONAL MATERIAL FACTS
THAT APPEAR WITHOUT CONTROVERSY
FACTS RELATING TO ALL CLAIMS
1.
The original complaint was filed by four unmarried plaintiffs who sought to compel three
named Kansas officials to issue marriage licenses to them. On November 26, 2014 a
First Amended Complaint (Document 52) was filed naming six additional plaintiffs and
three additional defendants.
2.
All of the newly named plaintiffs allege that they are married persons. Plaintiffs Peters
and Mohrman allege that they were married in the state of Iowa in 2010. (Doc. 52,
paragraph 8). Plaintiffs Fowler and Braun allege that they were married in the state of
Illinois in 2014. (Doc. 52, paragraph 9). Plaintiffs Bohnenblust and Hickman allege that
they were married in Kansas during November of 2014. (Doc. 52, paragraph 10).
16
3.
All of the claims asserted by the six new plaintiffs relate to one or another of the newly
added defendants, and they make no claims against the original three defendants.
4.
Plaintiffs Peters and Mohrman complain that Mohrmans employer, the University of
Kansas, refused to add Peters to Mohrmans state employee health insurance because
Peters does not meet the definition of a spouse under the eligibility rules governing the
health care plan. (Doc. 52, paragraphs 31-33). Plaintiffs Peters and Mohrman also
complain that they are not allowed to file a joint Kansas personal income tax return
because their marriage is not recognized under Kansas law. (Doc. 52, paragraphs 34-36).
5.
Plaintiffs Fowler and Braun complain that in November of 2014 Fowler was unable to
obtain a Kansas drivers license using the surname Braun because their Illinois marriage
is not recognized under Kansas law. (Doc. 52, paragraphs 38-42). Fowler and Braun state
no other complaint.
6.
Plaintiffs Bohnenblust and Hickman complain that the Division of Vehicles would not
issue a new drivers license to each of them, restoring the surnames they had used before
entering into earlier marriages. (Doc. 52, paragraphs 44-46). The Amended Complaint
does not state whether the prior marriages were entered into in Kansas or some other
state, nor does it state where the legal proceedings occurred to dissolve the earlier
marriages. Plaintiffs Bohnenblust and Hickman also complain that Bohnenblusts
employer, Kansas State University, refused to add Hickman as a spouse on Bohnenblusts
health insurance due to the limitation of spousal coverage to opposite-sex spouses. (Doc.
52, paragraphs 47-48).
17
7.
In this lawsuit 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). (Plaintiffs response to Stipulation #1)
8.
The marriage laws of Kansas have never permitted any person to marry any other person
without restriction. (Plaintiffs response to Stipulation #10)
9.
There is a rational basis for the Kansas statutory prohibition on underage marriages, and
that prohibition is constitutionally valid. (Plaintiffs response to Stipulations #11 and
#12).
10.
There is a rational basis for the Kansas statutory prohibition on incestuous marriages, and
#14).
11.
There is a rational basis for the Kansas statutory prohibition on bigamous marriages, and
#16).
FACTS RELATING TO PLAINTIFFS

12.
Plaintiffs Marie, Brown, Wilks, and DiTrani are no longer seeking to obtain marriage
licenses from any of the defendants. They have no intention to seek a marriage license
until after this lawsuit has been litigated to a final conclusion, and even then do not plan
to obtain licenses if all the relief sought by every plaintiff is not granted by the Court and
affirmed on appeal. (Marie depo. pp. 27, 37-38; Brown depo. pp. 25-30; DiTrani depo.
pp. 18-19, 24-25; Wilks depo. pp. 53-54, 57-59)
13.
Plaintiffs Wilks and DiTrani participated in a civil commitment ceremony in Wichita in
18
June of 2012. Friends, family, and acquaintances were invited to attend the ceremony.
(Wilks depo. pp. 15-18)
Since that time they have introduced one another as legal
spouses. (Wilks depo. pp. 20-21)

14.
At this time nothing prevents any of the other plaintiffs who were married in another state
from marrying their present spouses in Kansas, just as plaintiffs Bohnenblust and
Hickman have. Kansas law presently allows two persons who are already married to
marry one another again in Kansas. Bohnenblust and Hickman entered into a commonlaw marriage in Arkansas in 2000, and then entered into a formal ceremonial marriage in
Kansas in November of 2014. (Bohnenblust/Pottroff depo. at 22-24, 29-36)
15.
Plaintiffs Peters and Mohrman have resided together in Kansas since 2005. (Peters depo.
at p. 12) In 2010 they decided to travel to Iowa to enter into a marriage that would be
lawful in that state. They did not immediately demand that Kansas state agencies
recognize their Iowa marriage. (Peters depo. at pp. 15-17, 24)
16.
Peters is employed by the University of Kansas. He first sought to add Mohrman to his
employment-related insurance policy in 2005. (Peters depo. at p. 17) After November 15,
2014 he again sought to add Mohrman. (Peters depo. at p. 24) He was told that the Board
of Regents had decided not to change the rules concerning insurance for same sex
spouses until the dispute was finally resolved in the courts. (Peters depo. at p. 26) Gary
Mohrman has a personal health insurance policy that he finds satisfactory because he is in
good health and makes few claims. (Mohrman depo. at pp. 9-10)
17.
James Peters prepares his own taxes. (Peters depo. at p. 39) He first investigated the
possibility of filing a return as a married person in 2013, which was the first year the IRS
19
allowed same-sex couples to file as married persons. (Peters depo. at pp. 36-37) Peters
determined that he and Mohrman would minimize their income tax burden if they filed
separately. (Peters depo. at p. 33) He mistakenly prepared duplicate federal returns as
single persons because he believed that Kansas law required it. (Peters depo. at p. 38-42)
For 2014 Peters and Mohrman have again filed separately. There is no difference in the
amount of state tax owed whether they use federal forms for single persons or for married
persons filing separately. (Peters depo. at p. 42)
18.
Carrie Fowler was married to Bryan Fowler in Kansas in 1997 and was later divorced
from him in Atchison County. She has four minor children from that marriage.
(Fowler/Braun depo. at pp. 11-12)
19.
Carrie Fowler never obtained Illinois identification documents in the name of Kerry
Braun when she married plaintiff Sarah Braun in Illinois in June of 2014. None of the
paperwork related to the Illinois marriage states that she wanted to change her name to
Carrie Braun. (Fowler/Braun depo. at pp. 24-26)
20.
Plaintiffs Fowler and Braun are Kansas residents at this time, but they plan to relocate to
Michigan in the future to be near Sarah Brauns family even thought they know that
Michigan law will not recognize their marriage. (Fowler/Braun depo. at p. 16)
21.
The only time that Carrie Fowler ever sought to obtain a Kansas driver license in the
name of Carrie Brown was on June 25, 2014, more than three months prior to the filing
of this lawsuit. At that time she did not present any of the paperwork required by Kansas
law to obtain a new driver license in a name other than Carrie Fowler. (Fowler/Braun
depo. at pp. 26-28) She has never sought to file a civil name change petition.
20
(Fowler/Braun depo. at p. 32)

22.
Sarah Braun has no grievance other than her wish that Carrie fowler be allowed to
change her name to Carrie Braun. (Carrie Braun depo. at p. 9)
23.
Darci Bohnenblust was Darci Pottroff before she married Jerry Bohnenblust in 1982. The
marriage lasted until 1995 and produced two children. She did not seek restoration of her
former name at the time of the divorce because of the children. (Bohnenblust Pottroff
depo. at pp. 8, 12-13)
24.
Joleen Hickman was known as Joleen Spain until she married Philip Hickman in 1977.
The marriage produced one child before they were divorced in 1986. She also retained
her former name at the time of her Kansas divorce. (Hickman/Spain depo. at pp. 7-9)
25.
Darci and Joleen went to Arkansas in 2005 to be married. They had a formal ceremony
presided over by an official. Darci does not know whether that marriage was legal in
Arkansas or not. (Bohnenblust/Pottroff depo. at pp. 23-24 ) In November of 2014 they
obtained a marriage certificate from the Clerk of the Riley County District Court in
Kansas. Their Kansas marriage license indicated on it that each of them desired to restore
their former surnames of Pottroff and Spain. (Bohnenblust/Pottroff depo. at pp. 30, 37)
26.
On November 20 or 21 of 2014 they went together to a Department of Motor Vehicles

office east of Manhattan and asked for the restoration of their former names on newly
issued driver licenses. Their request was refused. (Bohnenblust/Pottroff depo. at pp. 4146) Neither Darci nor Joleen want to file a civil name change petition or a motion for
restoration in their divorce proceedings because they dont want to pay for a lawyer.
(Bohnenblust/Pottroff depo. at pp. 38-39 )
21
27.
Darci asked her employer, Kansas State University, to add Joleen to her employmentrelated health insurance as a spouse, and the request was denied. Financially any change
from Joleens own employment related coverage would result in no savings. It would
result in Joleens medical bills being paid by the state of Kansas rather than a private
insurer. (Bohnenblust/Pottroff depo. at pp. 30, 57) Darci is not interested in obtaining a
court order that would fail to get the medical bills paid by the State of Kansas.
(Bohnenblust/Pottroff depo. at pp. 56-57) Joleen is satisfied with her personal policy at
her place of employment. (Hickman/Spain depo. at p. 12)
FACTS RELATING TO CLAIMS AGAINST DEFENDANT CLERKS

28.
In Kansas, district courts exist in each of the Kansas counties. K.S.A 20-301.
29.
A clerk of the district court is appointed in each county. K.S.A. 20-343 (2014 Supp.).
30.
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 (2014 Supp).
31.
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.
32.
Clerks are expressly prohibited from giving legal advice. K.S.A. 20-3133.
33.
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.
20-318 (2014 Supp.); K.S.A. 20-319 (2014 Supp.).
34.
In Kansas, the district courts are organized in to 31 judicial districts. Kan. Const., Art. 3,
6; K.S.A. 4-202, et seq.
22
35.
Chief Judges are subject to supervision by the Kansas Supreme Court. K.S.A. 20-329
(2014 Supp.); Kansas Supreme Court Rule 107(a).
36.
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.
20-343 (2014 Supp.); K.S.A. 20-345 (2014 Supp.); Kansas Supreme Court Rule
107(b)(2).
37.
The Kansas Constitution provides for three separate branches of state government. Kan.
Const., Arts. 1, 2, 3.
38.
Under Kansas law, only one party need appear to apply for a marriage license. K.S.A. 232505(a) (2014 Supp.).
39.
In Kansas, marriage licenses may be issued by judges or clerks. See, e.g., K.S.A. 232505(a) (2014 Supp.).
40.
In performing the marriage license function, the clerk operates as an aide to the judges in
their respective districts, six district judges in the 7th Judicial District and twenty-eight in
the 18th Judicial District. Affidavit of Douglas Hamilton (Doc. 23-7), dated October 30,
2014, at 3; Affidavit of Bernie Lumbreras (Doc. 23-8) dated October 29, 2014, at 3.
41.
If there is a question about whether an applicant is legally entitled to a marriage license, a

judge decides the issue. Affidavit of Douglas Hamilton (Doc. 23-7) dated October 30,
2014, at 4; Affidavit of Bernie Lumbreras (Doc. 23-8) dated October 29, 2014, at 4.
42.
For example, for underage applicants, a judge may, after due investigation, give consent
and authorize a marriage. Clerks do not have that authority. K.S.A. 23-2505(c) (2014
Supp.).
23
43.
The statutes do not require an applicant to produce a birth certificate as part of the
marriage license process. K.S.A. 23-2505 (2014 Supp.).
44.
An oath is administered to the marriage license applicant and the judge or clerk are
authorized to administer oaths for that purpose. K.S.A. 23-2505(d) (2014 Supp.).
45.
A person swearing falsely in the affidavit for marriage license is subject to a

misdemeanor criminal penalty and a fine not exceeding $500. K.S.A. 23-2505(e) (2014
Supp.).
46.
A district court clerk does not authorize persons to perform marriage rites; clerks play no
role in the function set forth in K.S.A. 23-2504 (2014 Supp.). Affidavit of Douglas
Hamilton (Doc. 23-7) dated October 30, 2014, at 4; Affidavit of Bernie Lumbreras
(Doc. 23-8) dated October 29, 2014, at 5.
47.
A district court clerk is not the official records custodian for marriage license records in
Kansas. K.S.A. 23-2512 (2014 Supp.).
48.
A district court clerk has no role in determining the validity of marriage in Kansas,
including such matters as intestate succession. Affidavit of Douglas Hamilton (Doc. 237) dated October 30, 2014, at 9; Affidavit of Bernie Lumbreras (Doc. 23-8) dated
October 29, 2014, at 9.
49.
K.S.A. 23-2510 (2014 Supp.) imposes a license fee imposed on each marriage applicant
of $59 which is remitted to the state treasurer to be deposited to several different state
funds, including the protection from abuse fund, the family and children trust account of
the family and children investment fund, the crime victims assistance fund, the
nonjudicial salary adjustment fund and the state general fund.
24
50.
On October 6, 2014, Kerry Wilks and Donna DiTrani went to the Sedgwick County
Courthouse to apply for a marriage license. Wilks Depo. at 23:4-19; 24:14-19.
51.
Wilks spoke to an African American person at the desk. Wilks Depo. at 25:8-12.
52.
Wilks asked to speak to the African American womans supervisor, then to someone in
charge. Wilks Depo. at 26:1-7.
53.
Neither Wilks nor DiTrani identified Bernie Lumbreras as someone they had spoken to
regarding their application. DiTrani Depo. at 27:13-15; Wilks Depo. at 62.
54.
Wilks and DiTrani were referred to Judge James Fleetwood and spoke with him. Wilks
Depo. at 26:11-16.
55.
Judge Fleetwood informed Wilks and DiTrani that he was unable to authorize the
issuance of a marriage license. Wilks Depo. at 27:1-3; DiTrani Depo. at 19:4-21.
56.
Wilks and DiTrani met with Judge Fleetwood at the courthouse in his waiting room.
Wilks Depo. at 64:6-8.
57.
Wilks and DiTrani knew he was a judge of the district court. DiTrani Depo. at 19:4-21;
28:24-25; Wilks Depo. at 65:2-4.
58.
On or about October 7, 2014, the Office of Judicial Administration issued a

memorandum advising the 31 Chief Judges of the recommendation that applicants for
same-sex marriage licenses should be referred to the chief judge for determination.
Exhibit A to Affidavit of Sandra McCurdy, at 4 (Doc. 23-2).
59.
On October 7, 2014, Sandy McCurdy, Clerk of the District Court for the 10 th Judicial
District, received an application from a same-sex couple to obtain a marriage license
pursuant to K.S.A. 23-2505(a). Affidavit of Sandra McCurdy, at 2 (Doc. 23-2).
25
60.
Clerk McCurdy referred the application to Tenth Judicial District Chief Judge Kevin P.
Moriarty. Affidavit of Sandra McCurdy, at 3 (Doc. 23-2).
61.
On October 8, 2014, Chief Judge Kevin P. Moriarty issued Amended Administrative

Order No. 14-11, directing the Clerk of the District Court to issue marriage licenses to
same-sex couples provided they were otherwise qualified to marry under Kansas law.
Affidavit of Sandra McCurdy, at 5 (Doc. 23-2).
62.
On or about October 8, 2014, the Clerk of the District Court of the 7 th Judicial District
referred the Marriage License Application of Thomas Tuozzo and Robert Hedlund to the
Chief Judge for review of whether the same-sex applicants were legally entitled to a
marriage license under Kansas law. Admin. Order 14-3, filed Oct. 8, 2014 (attached to
Hamilton Affidavit, Doc. 23-7).
63.
On October 8, 2014, Chief Judge Fairchild issued Administrative Order 14-13 analyzing
existing Kansas law regarding same-sex marriage licenses and in the last paragraph
providing: [t]he Clerk of the District Court shall not issue a marriage license to these
applicants or to any other applicants of the same sex. When the Clerk rejects the
application, the clerk shall give the applicants a copy of this order. Admin. Order 14-3,
filed Oct. 8, 2014 (attached to Hamilton Affidavit, Doc. 23-7).
64.
Michelle Brown attended and graduated from Washburn Law School. Brown Depo. at
11:15-18.
65.
Brown works as a prosecutor in Geary County. Brown Depo. at 10:12-15.
66.
Before the application was denied, Michelle Brown was aware as of Wednesday October
8 or Thursday October 9, 2014 that the Douglas county clerks office would not accept a
26
same sex marriage application. Brown read the administrative order issued by Chief
Judge Fairchild. Brown assumed that the clerks office staff would obey the Chief
Judges Order. Brow Depo. at 20:22-22:15.
67.
On Thursday, October 9, 2014, Wilks and DiTrani returned to the Sedgwick County
Courthouse and were given an application for a marriage license, which they returned to
the person at the desk. They were asked to wait. Wilks Depo. at 33:1-16.
68.
Wilks and DiTrani were asked to come back up and a prepared sheet was read that they
would not issue a license at that time. Wilks recorded this on a video recording. Wilks
Depo. at 34:25-35:11.
69.
The October 9 determination regarding Wilks and DiTranis application and the
statement was issued by Judge Eric Yost acting in Chief Judge Fleetwoods absence.
Affidavit of Bernie Lumberas (Doc. 23-8), at 6.
70.
Wilks and DiTrani never returned to the Clerks Office to submit a completed worksheet
or to request issuance of a marriage license. Affidavit of Bernie Lumbreras (Doc. 59-2)
dated December 10, 2014, at 7.
71.
Pursuant to Chief Judge Moriartys Order in Johnson County, Clerk McCurdy issued a
marriage license to same-sex applicants on October 10, 2014. Affidavit of Sandra
McCurdy (Doc. 23-2), at 6.
72.
On October 10, 2014, in the Kansas Supreme Court, the Kansas Attorney Generals
Office filed a petition for issuance of writ of mandamus and request for immediate relief
against respondents Chief Judge Moriarty and Sandy McCurdy on behalf of the State of
Kansas. The action as assigned case no. 112,590. The filings in State ex. rel. Schmidt v.
27
Moriarty are subject to judicial notice as per Fed. R. Evid. 201(b). A copy of the
Supreme Courts November 18, 2014 decision is in the record as Doc. 59-6.
73.
On October 10, 2014, in case no. 112,590, the Kansas Supreme Court granted the States
request for a temporary stay of Amended Administrative Order 14-11. The stay was
granted in the interest of establishing statewide consistency pending the Courts further
order.
74.
On November 13, 2014, Chief Judge Fairchild issued Administrative Order 14-17,
repealing Administrative Order 14-13, directing Hamilton to issue same sex marriage
licenses to applicants who are otherwise qualified. Attachment to Affidavit of Douglas
Hamilton (Doc. 59-1).
75.
On November 13, 2014, Chief Judge Fleetwood issued Administrative Order 14-08,
directing Lumbreras to issue same sex marriage licenses to applicants who are otherwise
qualified. Attachment to Affidavit of Bernie Lumbreras (Doc. 59-2).
76.
Marie and Brown have not returned to the Douglas County Courthouse to attempt to pick
up a marriage license. Affidavit of Douglas Hamilton (Doc. 59-1), at 6.
77.
On November 18, 2014, the Supreme Court issued an Order in State ex. rel. Moriarty,
No. 112,590, finding that Chief Judge Moriarty was acting within his jurisdiction in
making the legal determination of whether the same-sex applicants were legally entitled
to a marriage license as per K.S.A. 23-2505(a). Slip op at 4-5 (Doc. 59-6).
78.
The Supreme Courts November 18, 2014, Order provided that each Chief Judge of the
31 Judicial Districts was free to make the legal determination for himself or herself
regarding whether to issue same-sex marriage licenses within the judicial district. Slip
28
op. at 7-8 (Doc. 59-6).

79.
On January 16, 2015, the U.S. Supreme Court accepted certiorari in DeBoer v. Snyder on
the following question: Does the Fourteenth Amendment require a state to license a
marriage between two people of the same sex? No. 14-571, 83 U.S. L.W. 3315, 2015
WL 213650 (U.S. Jan. 16, 2015).
FACTS RELATING TO DEFENDANT MOSIER

80.
Neither the Secretary of the Kansas Department of Health and Environment nor any other
KDHE employee participates in evaluating the qualifications of applicants to determine
whether they are lawfully entitled to the issuance of a marriage license consistent with the
statutory limitations set forth in K.S.A. 2014 Supp 23-2501 et seq. Decisions to issue
marriage licenses to same-sex couples or to refuse to issue licenses to those couples are
made by court personnel, without participation by the Secretary or by any KDHE
employee. (Robert Moser affidavit)
81.
K.S.A. 2014 Supp. 23-2507 requires the registration of all marriages under the
supervision of the secretary of health and environment as provided in K.S.A. 65-102.
K.S.A. 65-102 directs the KDHE secretary to prepare the blank forms used to gather vital
statistics related to marriages that have already been performed. It gives the KDHE
secretary no supervisory authority over decisions concerning denial of applications based
on the sex of the applicants. (Robert Moser affidavit)
82.
K.S.A. 2014 Supp. 23-2509 directs the secretary of health and environment to supply
marriage certificate forms and describes how the forms are to be used in recording
marriages. This statute gives the KDHE secretary no supervisory authority over court
29
personnel in deciding whether to issue marriage licenses. (Robert Moser affidavit)

83.
K.S.A. 2014 Supp. 23-2512 directs the KDHE secretary to maintain indexed records of
marriages once they have been performed and to provide certified copies when requested.
It gives the KDHE secretary no authority over court personnel in deciding whether to
issue marriage licenses. (Robert Moser affidavit)
84.
Any guidance provided by KDHE employees to court personnel is limited to helping

them fill out the forms to report information to the Office of Vital Statistics. None of the
advice provided by KDHE employees relates to the performance by court personnel of
their role in assuring that marriage licenses are not issued to persons who are not legally
entitled to be married. (Robert Moser affidavit)
85.
Prior to the filing of the First Amended Complaint in the above captioned matter, new
marriage license forms were distributed to Kansas district court clerks that delete all
references to men, women, husbands, wives, brides or grooms. These new forms are
intended for use when applicants of the same sex present themselves to apply for
marriage licenses, and the court clerks have been advised to employ the new forms for
that purpose. (Tim Keck affidavit)
86.
The Kansas State Employees Health Care Commission is an independent agency of the
State of Kansas that is not subordinate to the Kansas Department of Health and
Environment. See K.S.A. 75-6502.
FACTS RELATED TO DEFENDANT MICHAEL

87.
Health insurance for state employees and certain of their dependents is regulated by
statute and administrative regulations. K.S.A. 2014 Supp. 75-6501(c) gives to the Kansas
30
State Employees Health Care Commission the authority to define what persons may or
may not qualify for insurance benefits under the plan. Eligibility rules are not made by
the Director of the Kansas State Employee Health Benefits Plan. (Mike Michael
affidavit)
88.
Participation in the states health care benefits program is voluntary. Employees decide
whether to seek to add a dependent to an employees health insurance coverage. An
employees dependents have no right to apply for coverage themselves. (Mike Michael
affidavit)
89.
The current categories of dependent persons who are potentially eligible for coverage if
an employee chooses to apply for that coverage are set forth in K.A.R. 108-1-1. This
regulation was amended effective January 2, 2015. The regulation requires that the status
of dependent spouse be determined under Kansas law, not the law of any other state. The
regulation has no language expressly determining whether a spouse can or cannot be a
person of the same sex as the employee requesting to add the dependent spouse. (Mike
Michael affidavit)
90.
Defendant Michael has not participated in any communications with plaintiffs Peters,
Mohrman, Bohnenblust, and Hickman concerning their alleged attempts to obtain
dependent spouse coverage. Neither Defendant Michael nor anyone employed in his
agency has authority to decide constitutional challenges to Kansas laws or administrative
regulations. Any state employee who wishes to challenge the constitutionality of a statute
or regulation would need to obtain a judgment from a court of competent jurisdiction.
(Mike Michael affidavit)
31
FACTS RELATED TO DEFENDANT JORDAN

91.
For taxpayers who use the filing status on their federal personal income tax returns of
married filing separately, there is no additional preparatory work needed to fill out their
state personal income tax returns using single filing status other than transferring the
information from the federal forms to the state forms. (Richard Cram affidavit)
92.
Kansas imposes the same personal income tax rates on residents who file as single
unmarried persons or as married residents filing separately. (Richard Cram affidavit)
93.
Kansas' Form K-40 personal income tax return is a "self-assessment" tax document. Once
the return is filed, and assuming that the same is not adjusted or audited by the
Department, the amount of tax shown on the return becomes the assessment of the filer's
Kansas personal income tax. (Richard Cram affidavit)
94.
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. (Plaintiffs response to Stipulation #52)
95.
No Notice 13-18 worksheet is needed for couples filing federal returns under the status
married filing separately as their income is already separated. (Plaintiffs response to
Stipulation #53)
96.
Plaintiffs Peters and Mohrman have not submitted a Kansas state income tax return for
2014. (Plaintiffs response to Stipulation #56)
FACTS RELATED TO DEFENDANT KASPAR

97.
K.S.A. 23-2506 does not provide a method for obtaining restoration of a premarital
surname that was used prior to an earlier marriage. (Parks affidavit)
32
98.
K.S.A. 23-2506 is normally relied upon by the drivers license examiner to make changes
expressed in the Kansas marriage license that are associated with couples middle names
and/or surnames. Other legal procedures that do not involve Kansas Department of
Revenues Division of Vehicles should be employed to initiate a restoration. An example
of another legal procedure would be a name restoration order resulting from a divorce.
(Parks affidavit)
99.
Any applicant who wishes to obtain a driver license using the applicants name as shown
on his or her birth certificate will be required to provide additional documentation (i.e. a
name change order) if the applicant has an existing record with the Kansas Department of
Revenues Division of Vehicles with a name that deviates from the applicants name on
the birth certificate. (Parks affidavit)
100.
The above described policies concerning the names that are permissible under K.S.A. 232506 are applied the same to both men and women, whether they are heterosexual
couples or otherwise. (Parks affidavit)
ARGUMENT AND AUTHORITIES
Ordinarily jurisdictional defenses would be argued before a defendant brief addresses
the merits because there is no need to decide the substantive issues if a jurisdictional defense
prevents the merits from being reached. In this case defendants will reverse the normal order and
speak directly to the merits before going on to analyze the jurisdictional issues, because the lack
of substance on the merits illuminates the propriety of dismissal without prejudice. The facts
offered in support of the motion affirmatively establish that the Court has no subject matter
jurisdiction to decide most if not all of the claims of the various plaintiffs. The motion reinforces
33
the propriety of granting the motions to dismiss previously filed by all defendants. Defendants
continue to press for a timely decision on those motions and do not withdraw them by
responding to plaintiffs motion for summary judgment.
1. THE MOTION FOR SUMMARY JUDGMENT FAILS TO SET FORTH A PRIMA
FACIE RIGHT TO THE RELIEF REQUESTED.
The motion fails to present a prima facie case that any Kansas law is being applied to any
of them unconstitutionally by any of the defendants, either to prevent them from marrying or to
deny them equal treatment of the law without rational purpose. The four original plaintiffs are
not being prevented from marrying by anyone at all, let alone any of the defendants in this case.
The motion offers neither argument nor factual support for any grievance against Susan Mosier,
whose sole role has been to continue to distribute gender neutral standard forms. The motion
does not establish a plausible inference of an ongoing violation of any plaintiffs constitutional
rights by any defendant, or any justiciable challenge to Kansas laws as they are now being
applied to the plaintiffs, let alone an uncontroverted right to a permanent injunction.
The First Amended Complaint alleges that plaintiffs are entitled to permanent injunctions
against any . . . sources of state law that exclude same-sex couples from marriage and that
prohibit the recognition of same-sex marriages performed in Kansas and elsewhere. Plaintiffs
contend that sources of state law that exclude same-sex couples from marrying and that prohibit
recognition of same-sex marriages performed in Kansas and elsewhere are facially
unconstitutional and unconstitutional in all their applications, including as applied to Plaintiffs . .
. See document 52 at pages 29-30. The motion for summary judgment fails to present the
minimal factual and legal basis for any of the relief requested.
34
Not every grievance concerning deprivation of an alleged federal right gives rise to a
federal civil rights lawsuit. When Congress has not granted a private cause of action to enforce
the alleged federal right, there is no federal question jurisdiction to entertain a civil lawsuit. See
DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196-97, 109 S. Ct. 998,
1003-04, 103 L. Ed. 2d 249 (1989); Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378,
2015 WL 1419423 (2015). Injunctive relief cannot issue where no plaintiff has a federal cause of
action that provides a jurisdictional basis for a federal district court to grant relief. See Planned
Parenthood of Kansas and Mid-Missouri v. Moser, 747 F.3d 814, 838 (10th Cir. 2014).
No plaintiff in this case claims to be a member of a group that is entitled to special
protection under federal law. They do not allege that some federal statute grants a private cause
of action to them. They do not allege, for example, that they are disabled persons who are
prevented from taking advantage of the institution of marriage by reason of some physical or
psychological condition. If they alleged that they were protected under some federal statute, the
Court would then have to determine whether a Congressional abrogation of Eleventh
Amendment immunity could be given effect. States are not constitutionally obligated to
accommodate alleged physical or psychological disabilities in providing access to government
programs, for example. See Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.
Ct. 955, 148 L. Ed.2d 866 (2001), where the Court held that there is generally no duty imposed
on states under the 14th Amendment to accommodate the needs of disabled persons. See 546
U.S. at p. 158.
Invocation of the Constitution does not by itself give rise to federal question jurisdiction.
The Supremacy Clause does not provide a cause of action to private litigants. See Armstrong v.
35
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 2015 WL 1419423 (2015). The central holding of
Armstrong v. Exceptional Child Ctr., Inc. is that there is no implied constitutional cause of
action to enforce the Supremacy Clause. There must instead be a Congressional grant of a private
right to sue for violation of whatever federal law a plaintiff alleges to be supreme over the
challenged state law. Without a Congressional grant of a private right to sue there is no federal
cause of action that could support federal question jurisdiction based upon an alleged interest in
the subject matter of the legislation in question. A footnote in Armstrong confirms that reliance
on 42 U.S.C. would not cure the absence of an express Congressional grant of a private right to
sue, citing Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).
The sole federal statute relied upon here is 42 U.S.C. 1983.
Armstrong v. Exceptional Child Ctr., Inc. does not uphold federal subject matter
jurisdiction whenever a plaintiff seeks equitable injunctive relief to prevent a violation of the
constitution. The opinion notes that equitable relief is potentially available in a case where the
district court otherwise has jurisdiction over the parties to a justiciable case or controversy based
upon a claim that enforcement of a state law against a plaintiff is preempted by a federal statute.
But in this case plaintiff is seeking to enjoin laws which are not preempted by any federal statute,
and which are not applicable to plaintiff. See also Chapman v. Houston Welfare Rights
Organization, 441 U.S. 600, 613, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); Dennis v. Higgins, 498
U.S. 439, 450, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991). A cause of action for violation of the
Supremacy Clause relies upon an actual conflict between existing federal laws and state laws,
without which there is no violation of the Supremacy Clause and no right to sue. See Golden
36
State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420
(1989), 493 U.S. at p. 108 footnote 4.
A facial attack on the constitutionality of a statute that does not regulate speech can only
succeed by establish[ing] that no set of circumstances exists under which the Act would be
valid, i.e., that the law is unconstitutional in all of its applications. See Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1191, 170
L.Ed.2d 151 (2008). The motion does not discuss the standard for a facial attack, nor does it
discuss the substance or content of the challenged laws that do not apply to homosexual couples.
The Kansas marriage laws that plaintiffs attack do not just prohibit marriage between two
persons of the same sex. They also prohibit polygamy, polyandry, incestuous marriages,
underage marriages, and other purported marriages that would not be enforceable as ordinary
contracts. Neither the state constitutional provisions nor the state statutes that address these other
social issues are addressed in the motion for summary judgment. Plaintiffs have agreed to
stipulate that these aspects of Kansas law pose no constitutional problems. So the challenged
laws cannot be facially invalid, because they may be constitutionally applied in some
circumstances. Plaintiffs must therefore substantiate an as applied challenge rather than
pursuing a facial attack.
Plaintiffs also articulate no facial challenge to any Kansas law that refuses to give effect
in Kansas to a homosexual marriage entered into in another state. Such laws are facially valid by
reason of 28 U.S.C. 1738C; Williams v. State of N.C., 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed.
1577 (U.S. 1945); and In re Estate of Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001), aff'd
in part, rev'd in part, 273 Kan. 191, 42 P.3d 120 (2002). They are no more constitutionally
37
suspect than a law requiring the holder of any other out-of-state license to obtain a Kansas
license when they reside in Kansas. If Kansas can compel a plumber licensed in Iowa or Illinois
to obtain a Kansas plumbers license to ply that trade in Kansas without transgressing any
constitutional principle, then the same rule can properly be applied to marriage licenses and
driver licenses. This is not a case where residents of another state are threatened with loss of
legal rights guaranteed by their state of residence merely because they have crossed the border
into Kansas. Each of the plaintiffs was a Kansas resident at all relevant times. The plaintiffs who
traveled to another state to avoid the laws of Kansas have no constitutional grievance if Kansas
elects not to give effect to their foreign licenses. See Williams v. State of N.C., 325 U.S. 226, 65
S. Ct. 1092, 89 L. Ed. 1577 (U.S. 1945).
FACTUAL ALLEGATIONS CONCERNING MARRIAGE LICENSES
It is uncontroverted that Plaintiffs now can get marriage licenses anytime they want to
pay the fee and fill out the paperwork like any heterosexual couple would. They are no longer
interested in getting marriage licenses, but they also do not want to admit that this claim is no
longer a legitimate legal issue. As defendants pointed out during the hearing on the application
for preliminary injunctive relief, issuance of a piece of paper achieves nothing for these plaintiffs
under Kansas law. Plaintiffs now appear to agree with defendants wholeheartedly on this point,
and will not accept an order compelling issuance of marriage licenses as an effective redress of
their grievance. Past practice is not a basis for injunctive relief consistent with the Eleventh
Amendment. There is no rational basis for an inference that any defendant will again deny
plaintiffs a marriage license, unless the United States Supreme Court announces that there is no
constitutional defect in the challenged laws. Any order issued by this Court will not be accepted
38
by these plaintiffs. Only a Supreme Court mandate will put a stop to the litigation, and only the
end of the litigation would induce plaintiffs to renew their quest for licenses. Because no order of
this Court would provide plaintiffs with a remedy that would satisfy their grievance, a permanent
injunction would not be justifiable.
FACTUAL ALLEGATIONS CONCERNING TAXATION
Defendant Jordan is alleged to have overseen the issuance of a guidance document that
describes existing Kansas statutes concerning personal income tax returns filed by married
taxpayers. But plaintiffs Peters and Mohrman do not allege that they are treated any differently
than heterosexual married couples under the guidance. Instead they allege that they are treated
differently under Kansas law than they are treated under the Internal Revenue Code. See
paragraphs 34-36 of the first amended complaint. Their grievance about the difference between
federal tax forms and state tax forms does not state a claim for denial of equal protection. There
is no constitutional requirement that state income tax laws conform to federal income tax laws,
as explained in United States v. Windsor, __U.S.__, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013).
Peters and Mohrman do not complain that they are taxed any differently by the State of Kansas
than a heterosexual married couple would be. Their depositions confirm that they have no
grievance, either relating to the financial effect of their filings or with regard to the paperwork
burden of complying with Kansas law. No other plaintiff complains about income taxation.
FACTUAL ALLEGATIONS CONCERNING DRIVER LICENSING
Plaintiffs Fowler and Braun allege that defendants Jordan and Kaspar refuse to let them
rely on Illinois marriage papers to accomplish a name change. But again there is no allegation
that a heterosexual couple from Illinois would be treated differently under Kansas law. K.S.A.
39
2014 Supp. 23-2506 plainly limits the procedure they sought to invoke for change of name to
marriages performed in the State of Kansas pursuant to K.S.A. 2014 Supp. 23-2511. No unequal
application of the law has been proved with regard to Fowler and Braun. They admit that their
paperwork does not satisfy the requirements of the statute without regard to their gender.
Plaintiffs Bohnenblust and Hickman allege that they were not allowed to restore their
premarital surnames appearing on their respective birth certificates by presenting a marriage
license that purported to legitimize those changes. But they do not allege that a heterosexual
couple would have been permitted to achieve name restoration in this manner. The statute relied
upon, K.S.A. 2014 Supp. 23-2506, only permits certain new names to be approved, and does not
authorize restoration of a former name using this method. No unequal treatment of similarly
situated persons has been established, nor have they shown any gender-based discriminatory
application of the law. They would not qualify for the requested name changes whatever their
sexual identities might be.
FACTUAL ALLEGATIONS CONCERNING HEALTH INSURANCE
Four plaintiffs (two employees and two same-sex spouses) contend that their right to
participate in the Kansas State Employee Health Plan was unlawfully impaired or denied in
November of 2014. All four of these plaintiffs have now testified that the requested change
would be of no financial benefit to them. They identify no federal law that would require a state
government employer to supply any particular sort of health insurance benefits or mandate any
particular class of beneficiaries for the coverage.
Eligibility for health insurance benefits under the Kansas State Employee Health Plan is
controlled by K.A.R. 108-1-1, amended effective January 2, 2015, which states in pertinent part:
40
(g) Eligible dependent participants.

(1) Any person enrolled in the health care benefits program as a primary participant may
enroll the following dependents, subject to the same conditions and limitations that apply
to the primary participant:(A) The primary participant's lawful wife or husband, as
recognized by Kansas law and subject to the documentation requirements of the
commission or its designee;
The regulation states only that a wife or husbands status is to be determined by Kansas law and
proved by documentation acceptable to the agency. It does not state whether same sex marriages
are to be recognized under Kansas law or not.
Assuming arguendo that allegations of disparate treatment of similarly situated insurance
applicants can be read into these allegations, they would not give rise to an equal protection
violation. In the context of insurance coverage, even apparently arbitrary distinctions among
classes of potential beneficiaries are not considered per se irrational or arbitrary, and similar laws
have repeatedly been held to pass constitutional scrutiny. See for example Weinberger v. Salfi,
422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); Califano v. Boles, 443 U.S. 282, 99 S.
Ct. 2767, 61 L. Ed. 2d 541 (1979); Astrue v. Capato ex rel. B.N.C., __U.S.__, 132 S. Ct. 2021,
182 L. Ed. 2d 887, (2012); Johnson v. Califano, 656 F.2d 569 (10th Cir. 1981).
Ultimately the Court will have to decide whether it has jurisdiction to order the State of
Kansas to use taxpayer funds to pay these plaintiffs medical expenses. The plaintiffs have
testified that they want their bills paid, they dont want mere declaratory relief in the abstract.
Since there is no jurisdiction to order this relief consistent with the Eleventh Amendment, the
motion for summary judgment cannot grant these plaintiffs the remedy they seek.
The motion assumes without argument or factual support that every Kansan except
homosexuals has the right to change his or her name to anything at all just by endorsing the new
name on a marriage certificate. This is a mistaken conclusion both as a matter of law and as a
41
matter of fact. Plaintiffs Fowler and Braun allege that defendants Jordan and Kaspar refuse to let
them rely on Illinois marriage papers to accomplish a name change. But again there is no
evidence offered that a heterosexual couple from Illinois would be treated differently under
Kansas law. K.S.A. 2014 Supp. 23-2506 plainly limits the procedure they sought to invoke for
change of name to marriages performed in the State of Kansas pursuant to K.S.A. 2014 Supp.
23-2511. No unequal application of the law is threatened with regard to Fowler and Braun.
Plaintiffs Bohnenblust and Hickman allege that they were not allowed to restore their
premarital surnames appearing on their respective birth certificates by presenting a marriage
license that purported to legitimize those changes. But they do not establish that a heterosexual
couple would have been permitted to achieve name restoration in this manner. The statute relied
upon, K.S.A. 2014 Supp. 23-2506, only permits certain new names to be approved, and does not
authorize restoration of a former name using this method. No unequal treatment of similarly
situated persons occurs in the application of these laws.
2. THERE IS NO CASE OR CONTROVERSY, AND PLAINTIFFS LACK
STANDING TO PURSUE GENERAL RELIEF FOR EVERY HOMOSEXUAL
COUPLE IN KANSAS.
The court would be doing plaintiffs a favor by dismissing this lawsuit without prejudice
for lack of standing and absence of a case or controversy. This lawsuit was filed in haste on
behalf of four plaintiffs who did not really want to take advantage of the relief the Court has
granted to them. Whatever grievance these four plaintiffs may have considered pursuing in
October of 2014 is no longer a live controversy because Kansas court clerks have been issuing
same sex marriage licenses since mid November of 2014 with the blessing of the Kansas
Supreme Court. The six additional plaintiffs were not selected wisely, and have no justiciable
42
federal grievances to state either. Perhaps if other plaintiffs with real claims decide to sue other
defendants, the declaratory relief might still be available to those potential plaintiffs, depending
upon what happens in the United States Supreme Court this spring. But continued insistence on
pressing a lawsuit pursuing misguided claims challenging inoffensive state practices is likely to
result in nothing more than a waste of effort for all concerned.
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. See Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). 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. See Peterson
v. Martinez, 707 F.3d 1197, 1205-1206 (10th Cir. 2013).
A federal court has no power to answer abstract questions posed by litigants who have no
personal stake in the interpretation or application of a challenged law. Jurisdictional limits
imposed by Article III require that a plaintiff present a case or controversy that the parties have
standing to litigate. To establish Article III standing, an injury must be concrete, particularized,
and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable
ruling. See Clapper v. Amnesty Intern. USA, __US__, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264
(2013):
To establish Article III standing, an injury must be concrete, particularized, and actual
or imminent; fairly traceable to the challenged action; and redressable by a favorable
ruling. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, , 130 S.Ct. 2743,
2752, 177 L.Ed.2d 461 (2010); see also Summers, supra, at 493, 129 S.Ct. 1142;
Defenders of Wildlife, 504 U.S., at 560561, 112 S.Ct. 2130. Although imminence is
concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which
43
is to ensure that the alleged injury is not too speculative for Article III purposesthat the
injury is certainly impending. Id., at 565, n. 2, 112 S.Ct. 2130 (internal quotation marks
omitted). Thus, we have repeatedly reiterated that threatened injury must be certainly
impending to constitute injury in fact, and that [a]llegations of possible future injury
are not sufficient. Whitmore, 495 U.S., at 158, 110 S.Ct. 1717 (emphasis added; internal
quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3,
112 S.Ct. 2130; see DaimlerChrysler Corp., supra, at 345, 126 S.Ct. 1854; Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct.
693, 145 L.Ed.2d 610 (2000); Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct.
2301, 60 L.Ed.2d 895 (1979). (Clapper, 133 S.Ct at p. 1147)
See also Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1
(2009); Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 34 ERC 1785, 119
L.Ed.2d 351 (1992); City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983). The American Civil Liberties Union has not filed suit in its own name, and has instead
chosen to provide legal representation to ten persons who do not have individual standing to
obtain the relief that the lawyers seem sure that the Court would grant to other same sex couples
who are not parties. Assuming some of these ten plaintiffs could possibly establish standing to
challenge what is left of the federal Defense of Marriage Act, that claim has been forfeited for no
apparent reason, and is not in issue in this litigation.
Plaintiffs lack standing to sue Secretary Mosier, who is not a proper party defendant in
this lawsuit under the analysis followed in Bishop v. Oklahoma, 333 Fed. Appx. 361, 2009 WL
1566802 (10th Cir. 2009) and Bishop v. Smith, 760 F.3d 1070 (2014). As an executive officer
appointed as per K.S.A. 2014 Supp. 75-5601, Secretary Moser has no supervisory authority over
the judicial officials who would be called upon in appropriate cases to enforce the asserted rights
of same-sex couples. As the records custodian for marriage certificates, she has insufficient
involvement in the issuance of marriage licenses to be a defendant amenable to suit under the
Eleventh Amendment. See Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) and American
44
Tradition Institute v. Colorado, 876 F.Supp.2d 1222 (10th Cir. 2012). Judicial officers are not
employees, agents, or subordinates of the Kansas Department of Health and Environment, an
executive agency, but rather are part of the Kansas Judicial Branch and subject to its supervision
and control. Neither is the Kansas State Employees Health Care Commission subordinate to
KDHE. Plaintiffs own affidavits establish that KDHE is handling same-sex marriage certificates
routinely as vital statistics records.
Defendants Kaspar and Jordan are also not proper defendants in this litigation, which can
involve only the legal rights and grievances of these ten plaintiffs. No federal question has been
presented with respect to driver licensing, and the Court has no subject matter jurisdiction to
entertain a challenge to the tax assessment methods employed by the Kansas Department of
Revenue. See Direct Mktg. Ass'n v. Brohl, No. 13-1032, 2015 WL 867663 (U.S. Mar. 3, 2015).
Because the only plaintiffs who complain about income taxation have filed their federal returns
separately rather than jointly, there is no grievance against Secretary Jordan to litigate on that
account. No cognizable federal question is raised with respect to driver licensing, whether the
claim is directed at defendant Kaspar or at Secretary Jordan.
The Eleventh Amendment would restrict any otherwise proper litigation to prospective
declaratory and injunctive relief that is not merely a disguised demand for payments out of the
state treasury. 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. See Devon 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
45
does not itself provide a basis for federal jurisdiction. See Cardtoons, L.C. v. Major League
Baseball Players Ass'n, 95 F.3d 959, 964 (10th Cir.1996). 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. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714
(1908). The claim against defendant Michael clearly seeks financial relief, and the declaratory
relief relates solely to events that occurred in 2014 rather than anything continuing to day under
current Kansas laws and policies.
Plaintiffs argument concerning the ineffectiveness of 28 U.S.C.A. 1738C is illogical
and circular. Plaintiffs apparently contend that a federal district court can decide to give no effect
to an act of Congress without declaring it to violate the Constitution, as long as plaintiffs refuse
to comply with F.R.C.P. 5.1. Plainly this conclusion would dispense entirely with F.R.C. P. 5.1
and render its provisions meaningless. The rule requires formal notice to be given to the United
States Attorney General whenever litigation in which the United States is not a party calls into
question the constitutionality of an act of Congress:
Rule 5.1. Constitutional Challenge to a Statute--Notice, Certification, and Intervention
(a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing
into question the constitutionality of a federal or state statute must promptly:
(1) file a notice of constitutional question stating the question and identifying the paper
that raises it . . .
The rule does not say that notice is required only when a plaintiff directly asserts a claim that
seeks explicitly to declare a federal statute unconstitutional. Defendants can raise constitutional
issues also. See Benally v. Herbert, No. 2:12-CV-00275-DN-EJF, 2014 WL 4698655 (D. Utah
Sept. 19, 2014). The defendant, not the plaintiff, raised issues concerning the constitutionality of
46
a federal statute as a defense in Oklahoma ex rel Edmondson v. Pope, 516 F.3d 1214 (10th Cir.
2008), triggering F.R.C.P. 5.1.
There is no logical room between an argument that a statute is unavailable because it
cannot be applied constitutionally and an argument that the statute would be unconstitutional as
applied. Either contention draws into question the constitutionality of the statute. If 28
U.S.C.A. 1738C is a constitutionally valid exercise of the power of Congress to give definition
to the Full Faith and Credit Clause, then Kansas has the constitutional authority to disregard
same-sex marriages entered into in other states. Any argument that would nullify the laws of
Kansas must be equally destructive of the federal statute that authorizes the law which plaintiffs
seek to nullify. If the plaintiffs in this case are not willing to shoulder the burden of mounting a
successful constitutional challenge to 28 U.S.C.A. 1738C, then their claims must fail, unless
they are rescued by a decision that arrives before their claims are dismissed. There has never
been any doubt that the purpose of Congress in passing 28 U.S.C.A. 1738C was to achieve the
result that plaintiffs want this court to undo. There is also no doubt that the statute remains
enforceable and legally effective until it is properly declared unconstitutional. If that is to occur,
the decision will come in the pending case of DeBoer v. Snyder, 2015 WL 213650 (U.S. Jan. 16,
2015).
Any challenge to 28 U.S.C.A. 1738C is in essence a demand for the extension of the full
faith and credit clause beyond the limits defined by the United States Supreme Court and by
Congress, to compel states to accept the domestic relations laws of every other state. No such
interpretation has ever been placed on the Full Faith and Credit laws. See, for example, Williams
v. State of N.C., 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (U.S. 1945) rejecting the claim
47
that North Carolina was constitutionally obligated to recognize a Nevada divorce; and In re
Estate of Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001), aff'd in part, rev'd in part, 273
Kan. 191, 42 P.3d 120 (2002), concluding that Kansas is not obligated to identify the gender of a
purported marital partner under Wisconsin law rather than Kansas law. None of the claims
asserted in the first amended complaint is distinguishable from the claims rejected in Williams v.
State of N.C., supra. None of the plaintiffs claims to have a judgment entered by the courts of
another state in litigation where there was jurisdiction over the parties and the subject matter,
which Kansas is refusing to recognize. Kansas is not constitutionally obligated to recognize a
marriage entered into by two Kansas residents in another state any more than it would be
obligated to recognize a divorce obtained by Kansas residents in another state.
3. THE DEFENSES RAISED IN OPPOSITION TO THE PRELIMINARY
INJUNCTION AND IN THESE DEFENDANTS MOTIONS TO DISMISS ALSO
PREVENT THE ENTRY OF SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS.
The federal rules of civil procedure allow parties to incorporate the contents of another
pleading by reference. See F.R.C.P. 10(c). To avoid placing undue burdens on the Court these
defendants would incorporate the contents of all defendants previous submissions in opposition
to the preliminary injunction motion, including documents 7, 14, 15, 23, and 24, as well as any
attachments to those documents. These defendants would also incorporate by reference the
motions to dismiss previously filed by any defendants, including documents 57, 58, 59, 60, 77,
78, 79, 89, 90, and 99, together with any attachments to those documents.
48
CONCLUSION
The motion for summary judgment should be denied, either upon the factual showing or
upon the more complete factual showing that will be made possible by the completion of
discovery. The motions to dismiss previously filed by these defendants should be granted instead.
Respectfully submitted,
OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT
s/ M.J. Willoughby
Steve R. Fabert, #10355
M.J. Willoughby, #14059
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
MJ.willoughby@ag.ks.gov
Attorneys for Defendants
CERTIFICATE OF SERVICE
This is to certify that on this 13th day of April, 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/M.J. Willoughby
M.J. Willoughby
Attorneys for Defendants
49
Case 2:14-cv-02518-DDC-TJJ Document 115-1 Filed 04/13/15 Page 1 of 2
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.
)
_________________________________________ )
INDEX OF EXHIBITS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Plaintiffs Response to Stipulations

Affidavit of Richard Cram
Affidavit of Timothy Parks
Affidavit of Mike Michael
Affidavit of Robert Moser
Affidavit of Tim Keck
Transcript of Michelle Brown Deposition
Transcript of Kail Marie Deposition
Transcript of Donna DiTrani Deposition
Transcript of Kerry Wilks Deposition
Transcript of Gary Mohrman Deposition
Transcript of James Peters Deposition
13.
14.
15.
16.
Transcript of Carrie Braun Deposition

Transcript of Sarah Braun Deposition
Transcript of Darci Pottroff Deposition
Transcript of Joleen Spain Deposition

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
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.
2

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.
3
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.

4
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.
5
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.
7
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.
8
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
9
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.
10
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.
11
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.
12
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.
13
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.
14
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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Application for Certified Copy of Kansas Marriage Certificate
Form VS-237 rev 11/14
* PLEASE NOTE MARRIAGE CERTIFICATES ARE ON FILE FROM May 1, 1913 TO PRESENT
Today's Date:
Name of Requestor:
(person requesting the certificate)
Address:
City/State:
Zip:
Email:
Reason for Request (PLEASE BE SPECIFIC):
Phone Number:
Requestor's Signature:
*IMPORTANT: The person requesting the vital record must submit a copy of their identification. See list on reverse side.
Requestor's relationship to person on the Certificate? (Check one)

Maternal Grandparent
Father
Paternal Grandparent
Brother
Legal Guardian(submit custody order)
Son
Other (specify)
Daughter
Self
Mother
Sister
Current Spouse
Paternal Uncle
Maternal Uncle
Paternal Aunt
Maternal Aunt
Fees
K.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 $15.00 for
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 year
indicated plus two years before and two years after, or you may indicate the consecutive 5-year period you want searched. You may specify more
than one 5-year span, but each search will cost $15.00.
* 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.
Marriage Information
Party A
Name of Record:
Date of Birth:
FIRST
MIDDLE
MO/DAY/YEAR
LAST
Check one: Bride______ Groom______ Spouse _______
Party B
Name of Record:
Date of Birth:
FIRST
MIDDLE
LAST(maiden or previous married surname )
MO/DAY/YEAR
Check one: Bride______ Groom______ Spouse _______
Date of Marriage:
MONTH
DAY
YEAR
County that issued license:

City that Marriage took place:
Number of Copies Ordered:
COUNTY
$15 per Certified Copy
STATE(MUST BE KANSAS)
$Total:
0.00
*Requirements-Read before turning in application

1)
2)
3)
4)
5)
This request form must be completed.

Enclose a copy of both front and back of a current legal photo ID (see back for list of acceptable ID's)
Enclose appropriate fees
Person requesting to receive a birth certificate must sign above.
If submitting by mail, enclose a self-addressed stamped envelope
*Request will be returned if the above steps are not completed correctly.
Walk-in Hours:
9:00a.m.-4:00 p.m.
Monday-Friday
Kansas Office of Vital Statistics

1000 SW Jackson Suite 120
Topeka, KS 66612-2221
Office hours:(live phones)

Mon-Fri 8:00a.m.-5:00 p.m.
Phone: 785-296-1400
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Detailed Information
Identification
Requestor's current ID required To Get a Certificate:
Who's Eligible to Obtain Most Certificates: Must provide ID and proof of direct interest
ONE form of Primary Documentation required from list below
Eligibility
Please make a copy of one of the following documents and send

with the application. All documents MUST be signed, current By State law, vital records filed with this office are not open for public inspection
and valid. All Identification must have both sides and be able to and the requestor must meet eligibility requirements -- must be named on the
be read.
record, an immediate family member, or someone who can provide legal proof
the record is necessary for the determination of personal or property rights.
Photocopy of Government Issued Driver's License, Military ID,
[K.S.A. 65-2422d]
State ID card, Valid Passport and Visa's. (Not the credit/debit
card)
Permanent resident card
Alien registration receipt card
Employment authorization card
Re-entry permit
Refugee Travel Document
VA Card (with intact photo)
Voter's registration card (Countries outside of the U.S.)
Certificate of Naturalization (with intact photo)
Concealed Carry handgun license
Resident Alien card
* PLEASE NOTE MATRICULAS ARE NOT AN ACCEPTABLE FORM OF
ID
Parents
Current Spouse
Adult Children
Grandparents
Siblings
Aunts/Uncles
Niece/Nephew
Must be age 18 or older
If legal guardianship has been established through the courts, please provide a
copy of the guardianship papers.
If you do not have a government issued photo ID, you must send photocopies of any two of the following: *Photocopies must be
of the complete document, able to be read and be the Requestor's with current address
Temporary Driver's License

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
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)
Valid insurance card or policy of Requestor
Valid health insurance card or policy of Requestor
Parole document (book sheet) of Requestor
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)
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)
Letter from employer (with Requestor's current address)
U.S. Voters registration card of Requestor
Read: IMPORTANT MISCELLANEOUS INFORMATION

1) FEES EXPIRE 12 MONTHS FROM THE DATE OF THE REQUEST.
2) 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 an
original, certified copy or abstract or copy of a certificate [K.S.A. 652422d.(g)]. Vital records identity theft related to obtaining certificates or
making, counterfeiting, altering, amending any certified copy of a vital record with the intent to sell or obtain for any purpose of deception a certified
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)].
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KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT
Office 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 to
complete the official marriage license form.
License number (court use only) _________________________
Check One: Groom
PARTY A:
Bride
Spouse (This is the label that will appear on the marriage license.)
1. LEGAL NAME FIRST
MIDDLE
LAST
2. LAST NAME PRIOR TO FIRST MARRIAGE (If different)
3. DATE OF BIRTH (Month, Day, Year)
4. BIRTHPLACE (State or Foreign Country)
5.
RESIDENCE STATE OR FOREIGN COUNTRY
6.
COUNTY OR PROVINCE
7.
8.
FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE

(First, Middle, Last)
9.
BIRTHPLACE (State or
Foreign Country)
Check One: Groom
PARTY B:
Bride
SUFFIX
CITY OR TOWN
10. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE

11. BIRTHPLACE (State or

Foreign Country)
Spouse (This is the label that will appear on the marriage license.)
12. LEGAL NAME- FIRST
MIDDLE
LAST
16. RESIDENCE STATE OR FOREIGN COUNTRY
17. COUNTY OR PROVINCE
18. CITY OR TOWN
19. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE


Foreign Country)
SUFFIX


Foreign 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
PARTY B
Yes
Yes
No
Emancipated
Parent(s) Deceased
24f. NAME OF CONSENTING JUDGE (If applicable)

(Court use only)
No
Emancipated
Parent(s) Deceased
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

VS244 Rev. 11/12/2014
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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 NUMBERS
By 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 that

best describes whether you are Spanish, Hispanic, or Latino.
Check the no box if you are not Spanish, Hispanic or Latino.)
34a. PARTY A
34b. PARTY B
No, not Spanish/

Hispanic/Latino
Yes, Mexican/Mexican
American/Chicano
Yes, Puerto Rican
Yes, Cuban
Yes, Central American
Yes, South American
Yes, other Spanish/
Hispanic/Latino
No, not Spanish/

Hispanic/Latina
Yes, Mexican/Mexican
American/Chicana
35a. PARTY A
Yes, Puerto Rican
White
Black or
African American
American Indian or
Alaska Native
(Name of the enrolled
or principal tribes)
Yes, Cuban
Yes, Central American
Yes, South American
Yes, other Spanish/
Hispanic/Latina
(Specify)
(Specify)
Unknown
35. COUPLES RACE (Check one or more boxes to indicate what race(s) you consider yourself to be.)
Unknown
Asian Indian
Chinese
Filipino
Japanese
Other (Specify)
35b. PARTY B
Vietnamese
Other Asian (Specify)
Korean
White
Black or
African American
American Indian or
Alaska Native
(Name of the enrolled
or principal tribes)
Samoan
Other Pacific Islander
(Specify)
Native Hawaiian
Guamanian or Chamorro
Asian Indian
Chinese
Filipino
Japanese
Other (Specify)
Unknown
Korean
Vietnamese
Other Asian (Specify)
Native Hawaiian
Guamanian or Chamorro
Samoan
Other Pacific Islander
(Specify)
Unknown
36. EDUCATION (Check the box that best describes the highest degree or level of school completed.)
36a. PARTY A - EDUCATION
Unknown
36b. PARTY B - EDUCATION
Unknown
8th grade or less

Some College credit, but no degree
Masters degree (e.g., MA, MS, MEng, MEd, MSW, MBA)
8th grade or less
Some College credit, but no degree
Masters degree (e.g., MA, MS, MEng, MEd, MSW, MBA)
9th - 12th grade; no diploma

Associate degree (e.g., AA,AS)
High school graduate or GED

Bachelors degree (e.g., BA, AB, BS)
Doctorate (e.g., PhD, EdD) or Professional degree (e.g., MD, DDS, DVM, LLB, JD)
9th - 12th grade; no diploma
Associate degree (e.g., AA,AS)
High school graduate or GED

Bachelors degree (e.g., BA, AB, BS)
Doctorate (e.g., PhD, EdD) or Professional degree (e.g., MD, DDS, DVM, LLB, JD)
PARTY A GENDER
PARTY B GENDER
Male
Male
Female
Female
The information provided by:
The information provided by:
PARTY A SIGNATURE
PARTY B SIGNATURE
Party A Current Address and Daytime Telephone Number
Party B Current Address and Daytime Telephone Number
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STATE OF KANSAS
DEPARTMENT OF HEALTH AND ENVIRONMENT
Office of Vital Statistics
Marriage License
State File number
1.
GROOM
LEGAL NAME FIRST
MIDDLE
LAST/SUFFIX
3. DATE OF BIRTH (Month, Day, Year) RESIDENCE STATE

OR FOREIGN COUNTRY
5.
RESIDENCE STATE OR FOREIGN COUNTRY
6.
COUNTY OR PROVINCE
7.
8.
FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE

9.
BIRTHPLACE (State or
Foreign Country)
12. BRIDE
LEGAL NAME- FIRST
CITY OR TOWN

MIDDLE

Foreign Country)
LAST/SUFFIX
16. RESIDENCE STATE OR FOREIGN COUNTRY
17. COUNTY OR PROVINCE
18. CITY OR TOWN
19. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE


Foreign Country)


Foreign Country)
23a. GROOM
MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)
23c. BRIDE
MOTHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)
23b. GROOM
FATHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)
23d. BRIDE
FATHER/PARENT OR GUARDIAN CONSENTING (If applicable, type or print)
23e. HAVE ALL LIVING PARENT(S) OR GUARDIAN(S) CONSENTED?

GROOM
Yes
No
Emancipated
BRIDE
Parent(s) Deceased
Yes
No
Parent(s) Deceased
Emancipated
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
29. DATE RECEIVED BY COURT OFFICIAL
28. TITLE OF ISSUING 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 PERSONS
31. WHERE MARRIED COUNTY
32. CITY OR TOWN
WERE MARRIED ON: (Month, Day, Year)
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 legal name pursuant to K.S.A. 23-2506. (If applicable)

38. GROOM
NAME FIRST
MIDDLE
LAST
39.
MIDDLE
LAST
BRIDE
NAME FIRST
VS229 SML Rev. 11/12/2014
3/31/2015
DONNA MARGARET DITRANI

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.
.
.
KAIL MARIE and
MICHELLE L. BROWN, et al.,
Plaintiffs,
vs.
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, et al.,
Defendants.
.
DEPOSITION OF
DONNA MARGARET DITRANI,
taken on behalf of the Defendants, pursuant to
Notice to Take Deposition, beginning at 3:20 p.m.
on the 31st day of March, 2015, at the office of
Kansas Attorney General Derek Schmidt, 120 S.W.
10th Avenue, 3rd Floor Conference Room, in the
City of Topeka, County of Shawnee, and State of
Kansas, before Douglas R. Stone, C.C.R., R.P.R.
.
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ON BEHALF OF DEFENDANTS DOUGLAS HAMILTON AND

BERNIE LUMBRERAS:
.
Ms. M.J. Willoughby
Assistant Attorney General,
Civil Litigation Division
120 S.W. 10th Avenue, 2nd Floor
Topeka, Kansas 66612
785-296-2155
mj.willoughby@ag.ks.gov
.
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APPEARANCES
.
.
ON BEHALF OF THE PLAINTIFFS:
.
Ms. Samantha J. Wenger
Dentons, U.S., L.L.P.
4520 Main Street, Suite 1100
Kansas City, Missouri 64111
816-460-2400
samantha.wenger@dentons.com
.
.
ON BEHALF OF THE DEFENDANT SUSAN MOSIER, M.D.:
.
Mr. Steve R. Fabert
Assistant Attorney General,
Civil Litigation Division
120 S.W. 10th Avenue, 2nd Floor
Topeka, Kansas 66612
785-296-2215
steve.fabert@ag.ks.gov
.
.
.
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INDEX
.
.
Certificate ------------------------------- 34
.
.
WITNESS
ON BEHALF OF DEFENDANTS:
PAGE
Direct-Examination by Mr. Fabert
5
Cross-Examination by Ms. Willoughby
25
EXHIBITS
DITRANI DEPO EXHIBIT NO.:
MARKED
No 1 Answers to Interrogatories
7
No 2 Application & Affidavit for Marriage
License
14
.
.
.
.
.
.
.
.
.
3/31/2015

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DONNA MARGARET DITRANI,

called as a witness on behalf of the Defendants,
was sworn and testified as follows:
DIRECT-EXAMINATION
BY MR. FABERT:
Q. Please state your name.
A. Donna Margaret DiTrani.
Q. Ms. DiTrani, my name is Steve Fabert, I'm
an assistant attorney general in this lawsuit. I
represent all but two of the defendants. The two
defendants I do not represent are the two court
clerks. I'm here to ask you some questions.
There is a very strong temptation as we get
deeper into the week to shorten up these
depositions and to try to cut corners because once
you've asked a question three or four times it's
hard to ask it the fifth and sixth time, but I
know for you this is all new and hopefully it will
make as much sense as we made in the first
deposition this week.
Have you ever given your deposition before?
A. No.
Q. Have you ever been a party to a lawsuit?
A. No.
Q. Since you've never testified before I'll
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just give you the 25 words or less as to how this

goes. Lawyers ask questions, your lawyer gets to
object. Ordinarily that's just for the record,
sometimes a lawyer we'll get real serious about it
and tell you not to answer. Of course, you have
to obey the instructions of your lawyer, but
what's most important is that we try to keep in
mind that we're making a -- a written transcript
of what's being said here today. And that means
we have to be a lot more careful about the way we
enunciate what we're saying so the reporter can
understand what we're saying. Make sure that
every answer is out loud, make sure that we not
talk over each other, and that we not use sounds
and gestures and other things that might look
great on video or in person but just literally
can't be transcribed in order to have a good
record what goes on here.
Now, the court reporter is good at this sort
of thing, but when this is typed up you will have
the opportunity to read it, review it for
mistakes, and -- and correct anything that doesn't
read the way you recall actually testifying.
Do you feel good this afternoon? Are you -are you ready to testify for the first time in
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your life? Are you -- are you nervous?

A. No.
Q. Okay. Good. Because sometimes it can be
a stressful experience. I'm going try to short
circuit a line of questioning that we've used
repeatedly this week and start with your
interrogatory answers.
MR. FABERT: Ask that that be marked as
Exhibit 1.
(THEREUPON, DiTrani Deposition Exhibit
No 1 was marked for identification by the
reporter.)
BY MR. FABERT:
Q. Unfortunately, I don't think I've had
photocopies made of this, but that's the original
that was produced to us. If you'll take a look at
that and flip to the back page and make sure your
signature is -- is what's showing there and
confirm that those are the interrogatory answers
that you -A. Uh-huh.
Q. -- provided?
A. Yes.
Q. All right. Did you have a chance to read
those answers before you signed that document?
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Page 8
A. Yes.
Q. Is all the information contained in that
document true and correct to the best of your
knowledge and belief?
A. Yes.
Q. Great. That will short circuit a lot of
questions that I would otherwise have asked you.
How long have you lived in the State of
Kansas?
A. That's a two part question. As a
resident or as a student?
Q. Well, you haven't considered Kansas to be
your -- your domicile, the place that's your
permanent home until after you got out of college,
right?
A. Not -- yeah. So as a resident since
1990.
Q. Okay. So when did you attend college?
A. 1983.
Q. And were you here in Kansas for those
years?
A. I graduated in '87.
Q. All right. So you were -- you -- you had
a permanent home outside the State of Kansas while
you attended college here in Kansas?
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Page 9
A. Yes.
Q. And where was your permanent home during
your college years?
A. New Jersey.
Q. Would you go back home to New Jersey
during the summers or -A. Yes.
Q. -- vacation time? Now, when did you make
a decision to come back here to Kansas to make
this your state of residence?
A. In 1990.
Q. And what made you decide you wanted to
come to Kansas permanently?
A. That's kind of a long question -- that's
a hard question, I mean.
Q. Multiple reasons?
A. My sister was here.
Q. You got a sister here?
A. Uh-huh. Yeah. Uh-huh.
Q. All right. Where was your sister living
at that time?
A. In Wichita.
Q. In Wichita. What -- what school did you
attend while you were in college?
A. Wichita State.
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A. Yes.
Q. Have you ever been married?
A. No.
Q. Have you ever applied for a marriage
license?
A. Yes.
Q. How many times have you applied for a
marriage license?
A. Well, we tried twice, three times,
something like that. That week of -- the first
week of October.
Q. The -- the -A. I went with Kerry twice.
Q. The attempt that you made in October of
2014, is -- is -- is that the only sequence of
events where -A. Yes.
Q. -- you attempted to obtain a license?
A. Yes.
MS. WENGER: Need to make sure you let
him finish asking his questions -THE WITNESS: Okay.
MS. WENGER: -- before you answer so we
have a clear -THE WITNESS: Yeah.
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Page 10
Q. Wichita State. So you became familiar
with the Wichita area while you were in college?
A. Uh-huh, yes.
Q. Now I know from being from there that
Wichita State's campus is a very beautiful place,
and advertises the natural beauty of that part of
the State of Kansas. Did that help you decide
that maybe it would be a good thing to do and come
back -A. Yes.
Q. -- and live in Kansas?
A. Yes.
Q. What other relatives or family members do
you have here in the State of Kansas?
A. I have a sister.
Q. Your sister is still living here in
Kansas?
A. Yes.
Q. Does she live in Wichita still?
A. No.
Q. Where is she now?
A. Prairie Village.
Q. In Prairie Village. What is her name?
A. Debbie.
Q. Her last name is that still DiTrani?
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MS. WENGER: -- record here.

THE WITNESS: Sure.
BY MR. FABERT:
Q. So although you visited the clerk's
office more than once that week, correct?
A. Correct.
Q. How many times all together?
A. I visited it twice.
Q. Did you personally participate in any of
the discussions with the clerk staff?
A. Yes. Because I needed clarification what
she was meaning. That was it.
Q. When was the first time that you were
present in the -- the clerk's office to have a
conversation with the clerk staff?
A. Monday.
Q. Would that -A. October 6th.
Q. Monday the 6th?
A. Uh-huh. Yes.
Q. All right. Do you recall who you dealt
with?
A. No.
Q. Do you recall even by general
description?
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Page 13
A. No.
Q. Did you -- did you have a conversation
with more than one person?
A. Yes.
Q. How many different people did you talk
with?
A. I don't -- I don't remember.
Q. All right. What was the subject matter
of your discussion with those court employees?
A. Trying to get a marriage license.
Q. Did you personally fill out any paperwork
on the first visit that you had?
A. They wouldn't let us the first visit.
Q. Did you at some point later in the
week -A. Yes.
Q. -- fill out paperwork?
A. Yes.
Q. Did you personally fill out the paperwork
or did you just sign a form or -- or both?
A. Both.
MR. FABERT: Let's go ahead and mark as a
duplicate just because of the way we're numbering
things, we'll take the same document and we'll
give it a DiTrani Exhibit 1 sticker.
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Page 15
Q. All right then. Have you ever seen a
copy of that document since you signed it?
A. No.
Q. So today is the first opportunity to look
at that again?
A. Yes.
Q. While you were there on any occasion in
October of 2014, did you talk to anybody who you
understood to be an employee of the Kansas
Department of Health and Environment?
A. Can you repeat the question?
Q. All right. Let me back off and come at
it with a little foundation. One of the
defendants in this lawsuit is one of my clients
and that is the -- the -- the secretary of the
Kansas Department of Health and Environment. And
so what I'm asking you is whether on any of your
visits to the court, no matter how many there
were, did you deal with anyone who was introduced
to you or who was described to you as an employee
of the department of health and environment?
A. I don't recall.
Q. Okay.
MS. WENGER: Just for the record, again,
can we designate the social security numbers and
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Page 14
MS. WILLOUGHBY: Or 2.
(THEREUPON, a discussion was had off the
record; WHEREUPON, DiTrani Deposition Exhibit
No 2 was marked for identification by the
reporter.)
BY MR. FABERT:
Q. All right. Let me show you a document
that we've already talked about with -- with
another witness here today. I'll ask you whether
the document that you have in front of you that's
been marked DiTrani Exhibit 2, whether that's the
piece of paper that you signed and helped to
supply information for sometime that week, the
week of October the 6th?
A. Yes.
Q. Okay. Do you recognize your signature on
that document?
A. Yes.
Q. Do you recall what happened to the
original of that piece of paper after you signed
it?
A. No. They took it.
Q. The court staff kept the original and
didn't give you a copy back?
A. Correct.
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years of date of birth as confidential under the

local rule and the protective order in the
transcript.
MR. FABERT: We'll treat this document
exactly the same way that we're going to treat the
Exhibit 1 from the earlier deposition.
BY MR. FABERT:
Q. Now sometime during the week of October
the 6th did you decide that you needed to talk to
a lawyer?
A. On October 6th?
Q. Sometime during the course of that week.
A. Yes. I mean yes, I was thinking about it
and discussing it with Kerry.
Q. Now if -- if the lawsuit that we're here
for was filed on Friday the 10th did you discuss
the filing of the lawsuit before the complaint was
prepared?
MS. WENGER: Objection. This calls to
attorney/client privileged communications. You
don't have to answer this question.
MR. FABERT: Okay.
BY MR. FABERT:
Q. Did you read the complaint before it was
filed in court?
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Page 17
A. Mean this complaint, this writing?
Q. No. The -- the complaint. The piece of
paper that started the lawsuit that says at the
top of it complaint?
MS. WENGER: Answer.
A. I don't know. I don't remember. I mean,
you're talking five months ago.
MR. FABERT: Okay.
BY MR. FABERT:
Q. So far as you know were you the source of
any information suggesting that the secretary of
the Kansas Department of Health and Environment
should be named as a defendant in this lawsuit?
A. I don't know how to answer that question.
I don't really understand what you're asking me.
Q. At some point you supplied some factual
information to be included in the complaint, did
you not?
A. I gave dates but I was not -- I don't
know if it was Kerry. I don't know. I mean, I
did not look at their name badge or anything. I
mean, I was not that -- looking detailed at names.
Like, I don't remember.
Q. Did you leave it up to Kerry to provide
the information about the two of you?
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Page 19
obtain a Kansas marriage license until the lawsuit
has been brought to a final conclusion?
A. Correct. Yes.
Q. Do you recall talking to a judge at any
time during your visits to the clerk's office?
A. Yes. On Monday.
Q. Do you recall the judge's name?
A. No.
Q. Did the judge discuss with you why you
were not being allowed to fill out an application
for a marriage license?
A. Yes.
Q. Did his explanation make sense to you?
A. No.
Q. Did you feel that you understood what he
was saying to you?
A. Yes and no.
Q. Did he tell you that there were -- there
were aspects of Kansas Law that would not allow a
same sex couple to obtain a marriage license?
A. Yes.
Q. Do you recall what's been described as a
commitment ceremony that you participated in in
June of 2012?
A. Yes.
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Page 18
A. Yes.
Q. That will short circuit things too.
A. Yeah.
Q. Since the filing of the lawsuit, which
again, I'll just represent to you was Friday the
10th of October, have you gone back at any time to
finish applying for a marriage license?
A. No.
Q. Is there some particular reason why you
haven't gone back?
A. Well, it's all over the news. I mean, my
friends have gotten marriage licenses, got
married, it's not recognized anyway.
Q. We have -- we have other plaintiffs in
this lawsuit now who obtained marriage licenses
here in Kansas and went through a marriage
ceremony and are now plaintiffs seeking different
relief than the relief you're seeking.
Do you know of any reason why you decided not
to do what those plaintiffs did?
A. Because we want to see this suit through
so we can be recognized like everybody else.
Q. Okay.
A. That gets married.
Q. And is it your plan as of today not to
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Q. Can you describe what the -- the

procedure was in that commitment ceremony?
A. It was a religious procedure.
Q. Okay. It was -- did you invite people to
come and attend?
A. Yes.
Q. Did it look any different than -- than a
wedding, a heterosexual wedding?
A. No. Just there was two women.
Q. But the -- the proceedings -A. Yes.
Q. -- developed the way you would normally
expect if you went and -A. Yes.
Q. -- attended someone's wedding?
A. Yes.
Q. And did you exchange vows?
A. Yes.
Q. And was there a -- was there a member of
clergy who resided?
A. Yes.
Q. When the ceremony was over did that -did the person who officiated present the two of
you as -- as a couple?
A. Uh-huh. Yes.
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Q. Do you recall whether you were described
as spouses or what?
A. Yes.
Q. I mean, what -- what terminology was
used?
A. Honestly, I don't remember.
Q. Okay.
A. Partners for life. Spouses. I -- I
don't recall.
Q. Something like that?
A. Yes.
Q. And was -- was there a special set of
vows, a special script that was written up for
that ceremony?
A. No.
Q. Was this something that the -- well, so I
don't have to keep describing this backhandedly.
The person who officiated the ceremony was Jackie
Carter, correct?
A. Yes.
Q. Male or female, Jackie?
A. Female.
Q. Did Reverend Carter, Pastor Carter,
whatever title Jackie Carter prefers to be known
by, was there a standard --
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A. Yes.
Q. Standard sequence that Jackie Carter had
used before in similar circumstances?
A. Yes.
Q. Okay. And -- and so you followed the
script, was called on the script that Jackie
Carter suggested?
MS. WENGER: Objection. Calls for
speculation. You can answer if you know.
A. Yes.
BY MR. FABERT:
Q. So you left it up to Jackie Carter to
decide what words to use?
A. Yes.
Q. Now there was an exchange of vows. Did
-- did you and Kerry Wilks write those vows
yourself?
A. No.
Q. Did you get those from Jackie Carter or
some other source?
A. We just repeated what she told us.
Q. Now, did you give an interview to the
news media in Wichita where you described that
ceremony as a marriage?
A. I don't recall.
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Page 23
Q. Have you ever heard Kerry Wilks say that
she gave an interview to the news media in which
she described that commitment ceremony as a
marriage?
A. I don't recall.
Q. What is your employment?
A. I'm an account executive.
Q. Are you employed by an organization?
A. Yes.
Q. And what organization employs you?
A. High Touch Technologies.
Q. Is that a -- a company that's
headquartered in Wichita?
A. Yes.
Q. About how big is that organization?
A. I can't give you an exact number, I don't
know.
Q. Would you -- would you generally describe
it as a big company?
A. No.
Q. Or medium size?
A. Medium size.
Q. Not -- not a very small company but not a
very large one either. And how long have you been
employed there?
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A. 11 years.
Q. And what -- what generally are your job
responsibilities there?
A. Account management and sales.
Q. And what -- what business activity does
that company pursue?
A. Technology.
Q. All right. As you sit here today do you
know of any reason why the department of health
and environment would be doing anything to prevent
you from getting married?
MS. WENGER: Objection. Calls for
speculation and calls for a legal opinion. You
can go ahead and answer.
A. I mean, as far as getting a marriage
license, probably can get one in the counties that
are allowing it.
BY MR. FABERT:
Q. You're -- you're aware, aren't you, that
Judge Crabtree, the federal judge is presiding
over this case, he issued a preliminary injunction
order back in the beginning of November that
required the Sedgwick County Court Clerk to issue
you a marriage license if you would go back and
get one. You're aware of that order?
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A. Yes.
Q. All right. So as far as you know that
order is legally effective, correct?
A. Correct.
MS. WENGER: Objection. Calls for a
legal opinion.
BY MR. FABERT:
Q. So, do you have any reason as you sit
here today to believe that if you were to show up
at the -- at the same place you were in in October
and asked for a marriage license that they
wouldn't give it to you?
A. I don't -- I mean, probably not.
Q. Probably that they would give it to you?
A. They -- they would.
Q. All right.
MR. FABERT: I'm going to quit while I'm
ahead. I'm tired too.
MS. WILLOUGHBY: Boy, you get lucky.
CROSS-EXAMINATION
BY MS. WILLOUGHBY:
Q. My name is M.J. Willoughby, I'm an
assistant attorney general. I represent Bernie
Lumbreras who is the Clerk of the District Court
for Sedgwick County. Just a few things. I think
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like, the badges of the people and their names.
Can you describe who you met on those two
occasions?
A. Women. They were women. That's all I
know.
Q. How about race or age.
A. It was October. Do you remember when you
went to the grocery store and see the people who
checked you out? I mean, I have no idea. No
clue.
Q. Were these ladies sitting at the counter?
A. Yes.
Q. So sitting here today do you -- do you
know if you met Bernie Lumbreras?
A. No.
Q. In terms of -- I mean, you used the term
having the marriage recognized as opposed to just
getting a license. What does -- what does
recognize mean to you, what benefits are you
looking for?
A. All of them.
Q. And -A. Any benefit that you -- that anyone has
that's a married couple, whether it's insurance,
being able to go to the hospital if something
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Kerry told us, but what is your address in
Wichita?
A. It's 3334 Wild Rose.
Q. And that is titled in your name, correct?
A. What?
Q. The house.
A. Yes.
Q. How long have you lived there?
A. Since 2008.
Q. You indicated that you'd had some friends
that had gotten marriage licenses. Did they get
the licenses in Sedgwick County?
A. I don't know.
Q. Did you -- do you know, did they get it
from another county?
A. I -- I don't know.
Q. But they got 'em in Kansas?
A. Correct.
Q. And when did they get them, do you know?
A. Nope.
Q. Was it after the preliminary injunction
or before?
A. I don't know.
Q. Now in terms of -- of who you dealt with
at the courthouse, you said you didn't notice,
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Page 28
happened to Kerry. I mean, all those things.
Q. So in terms the ones that really come to
your mind it would be insurance and the
hospitalization?
A. Uh-huh.
Q. Are those the top two?
A. Yes.
Q. Okay. Anything else that you're thinking
of as a priority?
THE REPORTER: Ma'am, answer out loud if
you can.
THE WITNESS: What?
THE REPORTER: Answer verbally to her
question.
THE WITNESS: Sorry.
A. Yes. Those are the top two. Sorry.
THE REPORTER: That's okay.
BY MS. WILLOUGHBY:
Q. I think you told us what happened on the
first visit to the courthouse, you met with Judge
Fleetwood?
A. That was his name? I didn't even
remember his name. Yes.
Q. You knew he was the judge?
A. Yes.
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Q. And how long were you meeting with the
judge?
A. We waited for him for a while and then he
came into the waiting area and spoke to us.
Q. And how long was that conversation?
A. Ten minutes.
Q. And so on -- you talked about the first
visit on the 6th and you came on another occasion,
is that right?
A. Yes.
Q. And when was that?
A. Thursday.
Q. And what happened on that occasion?
A. We filled out the application, gave it to
the lady. She gave -- she took or IDs, filled out
the top of this paperwork, and then recited some
jibber-jobber stuff to say that they were not
going to process our marriage license and they
kept the paper. And we were pretty upset.
Q. Now in the lawsuit some -- a couple cell
phone recordings were produced. Were those from
your phone or from Kerry's?
A. Kerry's.
Q. Did you make a separate recording -A. No.
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Q. -- of anything? And you didn't make a

recording when you were meeting with Judge
Fleetwood, did you?
A. No.
MS. WILLOUGHBY: I think that's all I
have. Thank you.
MS. WENGER: I do not have any questions.
MR. FABERT: I think we're done.
(THEREUPON, the deposition concluded at
3:53 p.m.)
.
SIGNATURE
.
The deposition of DONNA MARGARET DITRANI
was taken in the matter, on the date, and at the
time and place set out on the title page hereof.
.
It was requested that the deposition be
taken by the reporter and that same be reduced to
typewritten form.
.
It was agreed by and between counsel and
the parties that the deponent will read and sign
the transcript of said deposition.
.
8
Page 31
AFFIDAVIT
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.
STATE OF __________________________:
COUNTY/CITY OF ____________________:
.
Before me, this day, personally appeared,
DONNA MARGARET DITRANI, who, being duly sworn, states
that the foregoing transcript of his/her Deposition,
taken in the matter, on the date, and at the time and
place set out on the title page hereof, constitutes a
true and accurate transcript of said deposition, along
with the attached Errata Sheet, if changes or
corrections were made.
.
__________________________________
.
SUBSCRIBED and SWORN to before me this __________
day of ________________________, 2015 in the
jurisdiction aforesaid.
.
______________________
_______________________
My Commission Expires
Notary Public
.
.
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DEPOSITION ERRATA SHEET

RE:
APPINO & BIGGS
REPORTING SERVICE, INC.
FILE NO.: 38210
CASE: KALI MARIE AND MICHELLE L. BROWN, ET AL. vs.
SUSAN MOSIER, M.D., ET AL.
DEPONENT: DONNA MARGARET DITRANI
DEPOSITION DATE: 3/31/2015
To the Reporter:
I have read the entire transcript of my Deposition taken in the
captioned matter or the same has been read to me. I request that
the following changes be entered upon the record for the reasons
indicated. I have signed my name to the Errata Sheet and the
appropriate Certificate and authorize you to attach both to the
original transcript.
PAGE LINE FROM
TO
REASON
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
Page 30
Page 32
3/31/2015

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PAGE LINE FROM
TO
REASON
_______________________________________________________
_______________________________________________________
_______________________________________________________
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_______________________________________________________
_______________________________________________________
_______________________________________________________
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_______________________________________________________
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SIGNATURE:_____________________________DATE:___________
Page 34
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CERTIFICATE
STATE OF KANSAS
SS:
COUNTY OF SHAWNEE
I, Douglas Stone, a Certified Court
Reporter, Commissioned as such by the
Supreme Court of the State of Kansas, and
authorized to take depositions and
administer oaths within said State pursuant
to K.S.A. 60-228, certify that the foregoing
was reported by stenographic means, which
matter was held on the date, and the time
and place set out on the title page hereof
and that the foregoing constitutes a true
and accurate transcript of the same.
I further certify that I am not related
to any of the parties, nor am I an employee
of or related to any of the attorneys
representing the parties, and I have no
financial interest in the outcome of this
matter.
Given under my hand and seal this
7th day of April, 2015.
.
Douglas Stone, C.C.R. No. 1518

2:14-cv-02518 #115

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Case 2:14-cv-02518-DDC-TJJ Document 115 Filed 04/13/15 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT

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District Court Rule 56.1(d) requires that all

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Douglas A. Hamilton (Doc. 59-1), at 6, and as of November 13, 2014, Administrative

controverted that Judge Fairchilds determination of legal entitlement was ministerial, as

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25. Uncontroverted but not material.

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to decide constitutional challenges to Kansas laws or administrative regulations. Any state

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FACTS RELATING TO PLAINTIFFS

Plaintiffs Wilks and DiTrani participated in a civil commitment ceremony in Wichita in

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Since that time they have introduced one another as legal

spouses. (Wilks depo. pp. 20-21)

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(Fowler/Braun depo. at p. 32)

On November 20 or 21 of 2014 they went together to a Department of Motor Vehicles

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FACTS RELATING TO CLAIMS AGAINST DEFENDANT CLERKS

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If there is a question about whether an applicant is legally entitled to a marriage license, a

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A person swearing falsely in the affidavit for marriage license is subject to a

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On or about October 7, 2014, the Office of Judicial Administration issued a

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On October 8, 2014, Chief Judge Kevin P. Moriarty issued Amended Administrative

Brown works as a prosecutor in Geary County. Brown Depo. at 10:12-15.

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op. at 7-8 (Doc. 59-6).

FACTS RELATING TO DEFENDANT MOSIER

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personnel in deciding whether to issue marriage licenses. (Robert Moser affidavit)

Any guidance provided by KDHE employees to court personnel is limited to helping

FACTS RELATED TO DEFENDANT MICHAEL

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FACTS RELATED TO DEFENDANT JORDAN

FACTS RELATED TO DEFENDANT KASPAR

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