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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN




VIRGINIA WOLF and CAROL SCHUMACHER,
KAMI YOUNG and KARINA WILLES,
ROY BADGER and GARTH WANGEMANN,
CHARVONNE KEMP and MARIE CARLSON,
JUDITH TRAMPF and KATHARINA HEYNING,
SALUD GARCIA and PAM KLEISS,
WILLIAM HURTUBISE and LESLIE PALMER,
and JOHANNES WALLMANN and
KEITH BORDEN,

Plaintiffs,

v. Case No. 14-C-00064-SLC

SCOTT WALKER, J.B. VAN HOLLEN, OSKAR
ANDERSON, JOSEPH CZARNEZKI, WENDY
CHRISTENSEN, and SCOTT MCDONELL,

Defendants.


STATE DEFENDANTS WALKER, VAN HOLLEN, AND ANDERSONS
RESPONSE TO PLAINTIFFS PROPOSED FINDINGS OF FACT IN SUPPORT OF
THEIR MOTION FOR SUMMARY JUDGMENT


Pursuant to II.D. of the Courts Procedure to be Followed on Motions for Summary
Judgment, Defendants Scott Walker, J.B. Van Hollen, and Oskar Anderson (collectively, State
Defendants), by their attorneys, Assistant Attorneys General Timothy C. Samuelson, Thomas C.
Bellavia, and Clayton P. Kawski, respectfully respond to Plaintiffs Proposed Findings of Fact in
Support of their Motion for Summary Judgment.
Preliminarily, State Defendants disagree that all of the facts proposed by Plaintiffs are
actually facts. To the extent that Plaintiffs cite to or quote the Wisconsin Statutes, the Wisconsin
Administrative Code, or case law in their Proposed Findings of Fact in Support of their Motion
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for Summary Judgment (Dkt. #72), and to the extent that Plaintiffs assert any legal statements or
legal arguments in their Proposed Findings of Fact in Support of the Motion for Summary
Judgment, State Defendants dispute that such citations, quotations, legal statements, and legal
arguments contain factual allegations to which a response is required. To the extent that the
legal statements in Plaintiffs Proposed Findings of Fact in Support of Their Motion for
Summary Judgment misstate the law, State Defendants dispute those statements.
I. Jurisdiction And Venue.
1. Plaintiffs bring this action under 42 U.S.C. 1983 to challenge the validity under
the United States Constitution of Article XIII, 13 of the Constitution of Wisconsin, and to
redress deprivations of rights, privileges, and immunities secured by the Constitution of the
United States under color of State law. Answer of Defendant McDonell to Amended Complaint
7 (Dkt # 61).

RESPONSE: State Defendants do not dispute Proposed Fact No. 1.
2. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, which
provides that district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States. Answer of Defendant McDonell to
Amended Complaint 7 (Dkt # 61); Answer of Defendant Czarnezki to Amended Complaint
10 (Dkt # 63); Answer of Defendant Christensen to Amended Complaint 5 (Dkt # 69).

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law. The
proposed finding is not supported by the evidence cited. This Court lacks jurisdiction over
Plaintiffs claims.
3. This Court also has jurisdiction pursuant to 28 U.S.C. 1343(a)(3), which
provides that district courts shall have original jurisdiction of any civil action authorized by law
to be commenced by any person . . . [t]o redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United States. Answer of Defendant
McDonell to Amended Complaint 7 (Dkt # 61); Answer of Defendant Czarnezki to Amended
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Complaint 10 (Dkt # 63); Answer of Defendant Christensen to Amended Complaint 5
(Dkt # 69).

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law. The
proposed finding is not supported by the evidence cited. This Court lacks jurisdiction over
Plaintiffs claims.
4. Venue is proper in this district pursuant to 28 U.S.C. 1391(b) because
Defendants Walker, Van Hollen, Chandler, Anderson, McDonell, and King reside and have
offices within the district and all Defendants reside in the State of Wisconsin, and because the
events giving rise to Plaintiffs Wolf, Schumacher, Trampf, Heyning, Garcia, Kleiss, Wallmann
and Bordens claims occurred, and will occur, in this district. Declaration of Plaintiff Virginia
Wolf in Support of Plaintiffs Motion for Summary Judgment (Wolf Decl.), 2; Declaration of
Plaintiff Carol Schumacher in Support of Plaintiffs Motion for Summary Judgment
(Schumacher Decl.), 2; Declaration of Plaintiff Judith Trampf in Support of Plaintiffs
Motion for Summary Judgment (Trampf Decl.), 2; Declaration of Plaintiff Katharina
Heyning in Support of Plaintiffs Motion for Summary Judgment (Heyning Decl.), 2;
Declaration of Plaintiff Salud Garcia in Support of Plaintiffs Motion for Summary Judgment
(Garcia Decl.), 2; Declaration of Plaintiff Pamela Kleiss in Support of Plaintiffs Motion for
Summary Judgment (Kleiss Decl.), 2; Declaration of Plaintiff Johannes Wallmann in
Support of Plaintiffs Motion for Summary Judgment (Wallmann Decl.), 2; Declaration of
Plaintiff Keith Borden in Support of Plaintiffs Motion for Summary Judgment (Borden Decl.),
2. Answer of Defendant McDonell to Amended Complaint 7 (Dkt # 61); Answer of
Defendant Czarnezki to Amended Complaint 11 (Dkt # 63); Answer of Defendant Christensen
to Amended Complaint 5 (Dkt # 69).

RESPONSE: State Defendants do not dispute Proposed Fact No. 4.
II. Plaintiffs.
5. Plaintiffs Virginia Wolf and Carol Schumacher, Roy Badger and Garth
Wangemann, Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Salud
Garcia and Pam Kleiss, William Hurtubise and Leslie Palmer, and Johannes Wallmann and
Keith Borden are all loving, committed, same-sex couples. Wolf Decl., 4; Schumacher Decl.,
4; Declaration of Plaintiff Kami Young in Support of Plaintiffs Motion for Summary Judgment
(Young Decl.), 4; Declaration of Plaintiff Karina Willes in Support of Plaintiffs Motion for
Summary Judgment (Willes Decl.), 4; Declaration of Plaintiff Roy Badger in Support of
Plaintiffs Motion for Summary Judgment (Badger Decl.), 5; Declaration of Plaintiff Garth
Wangemann in Support of Plaintiffs Motion for Summary Judgment (Wangemann Decl.), 5;
Declaration of Plaintiff Charvonne Kemp in Support of Plaintiffs Motion for Summary
Judgment (Kemp Decl.), 4; Declaration of Plaintiff Marie Carlson in Support of Plaintiffs
Motion for Summary Judgment (Carlson Decl.), 4; Trampf Decl., 4; Heyning Decl., 4;
Garcia Decl., 4; Kleiss Decl., 4; Declaration of Plaintiff William Hurtubise in Support of
Plaintiffs Motion for Summary Judgment (Hurtubise Decl.), 4; Declaration of Plaintiff
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Leslie (Dean) Palmer in Support of Plaintiffs Motion for Summary Judgment
(Palmer Decl.), 4; Wallmann Decl., 4; Borden Decl., 4.

RESPONSE: State Defendants do not dispute Proposed Fact No. 5.
6. Virginia Wolf and Carol Schumacher reside in Eau Claire, WI. Wolf Decl., 2;
Schumacher Decl., 2. They left Wisconsin to enter into a legal marriage in the State of
Minnesota, and they wish to have their marriage recognized in Wisconsin. Wolf Decl., 14;
Schumacher Decl., 13. They are both over the age of 18, are unrelated to each other by blood
or marriage, neither has been divorced in the last six months, and neither is married to anyone
else. Wolf Decl., 19; Schumacher Decl., 16. They are similarly situated in all relevant
respects to any different-sex couple seeking to have a validly contracted out-of-state marriage
recognized in Wisconsin. Wolf Decl., 19; Schumacher Decl., 16. But for the fact that they
are a same-sex couple, Wisconsin state law would regard their marriage as valid in this state.
Wolf Decl., 19; Schumacher Decl., 16. See also In re Campbells Estate, 260 Wis. 625, 631,
51 N.W.2d 709, 712 (1952) (Marriages valid where celebrated are valid everywhere.) (citing
Lanham v. Lanham, 136 Wis. 360, 117 N.W. 787 (1908); Owen v. Owen, 178 Wis. 609,
190 N.W. 363 (1922)).

RESPONSE: Dispute in part. The fourth sentence
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is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law and contains a misapprehension
of Wisconsin law insofar as their citation to In re Campbells Estate, 260 Wis. 625, 631,
51 N.W.2d 709 (1952), is incomplete and misleading. The full quote states: Marriages valid
where celebrated are valid everywhere, except those contrary to the law of nature and those
which the law has declared invalid upon the ground of public policy. (Emphasis indicating
Plaintiffs omission).
7. Kami Young and Karina Willes reside in Milwaukee, WI. Young Decl., 2;
Willes Decl., 2. They left Wisconsin to enter into a legal marriage in the State of Minnesota,
and they wish to have their marriage recognized in Wisconsin. Young Decl., 6; Willes Decl.,
7. They are both over the age of 18, are unrelated to each other by blood or marriage, neither
has been divorced in the last six months, and neither is married to anyone else. Young Decl., 9;
Willes Decl., 11. They are similarly situated in all relevant respects to any different-sex couple
seeking to have a validly contracted out-of-state marriage recognized in Wisconsin. Young Decl.,
6, 9; Willes Decl., 7, 11. But for the fact that they are a same-sex couple, Wisconsin state

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State Defendants object to the extent that Proposed Fact No. 6, and other proposed facts, fail to comply
with I.B.2 of the Courts Procedure to be Followed on Motions for Summary Judgment, to the extent
that Plaintiffs facts are not proposed in a separate, numbered paragraphs, and limited to a single factual
proposition.
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law would regard their marriage as valid in this state. Young Decl., 9; Willes Decl., 11.
See also In re Campbells Estate, 260 Wis. at 631.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law. See also Response to No. 6, supra.
8. Roy Badger and Garth Wangemann reside in Milwaukee, WI. Badger Decl., 2;
Wangemann Decl., 2. They are in a loving, committed, same-sex relationship and wish to
marry in Wisconsin. Badger Decl., 4, 15; Wangemann Decl., 4, 16. They are both over the
age of 18, are unrelated to each other by blood or marriage, neither has been divorced in the last
six months, and neither is married to anyone else. Badger Decl., 16; Wangemann Decl., 16.
They are similarly situated in all relevant respects to any different-sex couple wishing to marry
in this state. Badger Decl., 16; Wangemann Decl., 16. But for the fact that they are a
same-sex couple, they would be permitted to marry here. Badger Decl., 16; Wangemann Decl.,
16.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law.
9. Charvonne Kemp and Marie Carlson reside in Milwaukee, WI. Kemp Decl., 2;
Carlson Decl., 2. They are in a loving, committed, same-sex relationship and wish to marry in
Wisconsin. Kemp Decl., 4, 10; Carlson Decl., 4, 9. They are both over the age of 18, are
unrelated to each other by blood or marriage, neither has been divorced in the last six months,
and neither is married to anyone else. Kemp Decl., 14; Carlson Decl., 12. They are similarly
situated in all relevant respects to any different-sex couple wishing to marry in this state. Kemp
Decl., 14; Carlson Decl., 12. But for the fact that they are a same-sex couple, they would be
permitted to marry here. Kemp Decl., 14; Carlson Decl., 12.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law.
10. Judi Trampf and Katy Heyning reside in Madison, WI. Trampf Decl., 2;
Heyning Decl., 2. They are in a loving, committed, same-sex relationship and wish to marry in
Wisconsin. Trampf Decl., 4, 9; Heyning Decl., 4, 8. They are both over the age of 18, are
unrelated to each other by blood or marriage, neither has been divorced in the last six months,
and neither is married to anyone else. Trampf Decl., 12; Heyning Decl., 11. They are
similarly situated in all relevant respects to any different-sex couple wishing to marry in this
state. Trampf Decl., 12; Heyning Decl., 11. But for the fact that they are a same-sex couple,
they would be permitted to marry here. Trampf Decl., 12; Heyning Decl., 11.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law.
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11. Salud Garcia and Pam Kleiss reside in Madison, WI. Garcia Decl., 2; Kleiss
Decl., 2. They are in a loving, committed, same-sex relationship and wish to marry in
Wisconsin. Garcia Decl., 4; Kleiss Decl., 4. They are both over the age of 18, are unrelated
to each other by blood or marriage, neither has been divorced in the last six months, and neither
is married to anyone else. Garcia Decl., 13; Kleiss Decl., 14. They are similarly situated in
all relevant respects to any different-sex couple wishing to marry in this state. But for the fact
that they are a same-sex couple, they would be permitted to marry here. Garcia Decl., 13;
Kleiss Decl., 14.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law.
12. William Hurtubise and Leslie Dean Palmer reside in Racine, WI. Hurtubise
Decl., 2; Palmer Decl., 2. They are in a loving, committed, same-sex relationship and wish
to marry in Wisconsin. Hurtubise Decl., 4, 8; Palmer Decl., 4, 8. They are both over the
age of 18, are unrelated to each other by blood or marriage, neither has been divorced in the last
six months, and neither is married to anyone else. Hurtubise Decl., 11; Palmer Decl., 11.
They are similarly situated in all relevant respects to any different-sex couple wishing to marry
in this state. Hurtubise Decl., 11; Palmer Decl., 11. But for the fact that they are a same-sex
couple, they would be permitted to marry here. Hurtubise Decl., 11; Palmer Decl., 11.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law.
13. Johannes Wallmann and Keith Borden reside in Madison, WI. Wallmann Decl.,
2; Borden Decl., 2. They were married in Canada in 2007, where they had planned to live in
Toronto after moving from New York, and they wish to have their marriage recognized in
Wisconsin. Wallmann Decl., 4, 8; Borden Decl., 4, 8. They are both over the age of 18, are
unrelated to each other by blood or marriage, neither has been divorced in the last six months,
and neither is married to anyone else. Wallmann Decl., 15; Borden Decl., 14. They are
similarly situated in all relevant respects to any different-sex couple seeking to have a validly
contracted out-of-state marriage recognized in Wisconsin. Wallmann Decl., 15; Borden Decl.,
14. But for the fact that they are a same-sex couple, Wisconsin state law would regard their
marriage as valid in this state. Wallmann Decl., 15; Borden Decl., 14. See also In re
Campbells Estate, 260 Wis. at 631.

RESPONSE: Dispute in part. The fourth sentence is not a fact but a conclusion of law.
The fifth sentence is not a fact but a conclusion of law. See also Response to No. 6, supra.
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III. Defendants.
14. Defendant Scott Walker is the Governor of the State of Wisconsin. As Governor,
Defendant Walker has a duty under the Wisconsin Constitution to ensure that the laws of the
State of Wisconsin, including the marriage ban and the marriage evasion statute, are faithfully
executed. Wis. Const. Art. V, 4.

RESPONSE: State Defendants do not dispute Proposed Fact No. 14.
15. Defendant J.B. Van Hollen is the Attorney General of Wisconsin. As Attorney
General, Van Hollen has authority to appear for and represent the State, and to initiate a
prosecution under Wisconsins marriage evasion statute. Wis. Stat. 165.25(1), (1m).

RESPONSE: State Defendants do not dispute Proposed Fact No. 15.
16. Defendant Richard G. Chandler is the Secretary of Revenue of the State of
Wisconsin. As Secretary, Chandler has authority to enforce the revenue code of Wisconsin,
including its provisions related to the treatment for revenue purposes of marriages contracted in
Wisconsin and in other jurisdictions. Wis. Stat. 15.43, 73.03.

RESPONSE: Secretary Chandler was dismissed as a Defendant by the Court on
April 30, 2014. (See Dkt. #97).
17. Defendant Oskar Anderson is the Wisconsin State Registrar. As State Registrar,
Anderson has the authority to establish the form of a marriage license in Wisconsin, and to
accept for registration and assign a date of registration to marriage documents. Wis. Stat.
69.03, 69.16(1).

RESPONSE: State Defendants do not dispute Proposed Fact No. 17.
18. Defendant Gary King is the District Attorney of Eau Claire County. As District
Attorney, King has the authority to initiate a prosecution in Eau Claire County under the
marriage evasion statute. Wis. Stat. 978.05(1).

RESPONSE: District Attorney King was dismissed as a Defendant by the Court on
April 30, 2014. (See Dkt. #97). Responding further, State Defendants dispute that the marriage
evasion statute applies to Plaintiffs or any same-sex couple. (See State Defendants
Memorandum in Support of Motion to Dismiss (Dkt. #67) at 8-11).
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19. Defendant John Chisholm is the District Attorney of Milwaukee County. As
District Attorney, Chisholm has the authority to initiate a prosecution in Milwaukee County
under the marriage evasion statute. Wis. Stat. 978.05(1).

RESPONSE: District Attorney Chisholm was dismissed as a Defendant by the Court on
April 30, 2014. (See Dkt. #97). Responding further, State Defendants dispute that the marriage
evasion statute applies to Plaintiffs or any same-sex couple. (See State Defendants
Memorandum in Support of Motion to Dismiss (Dkt. #67) at 8-11).
20. Defendant Joseph J. Czarnezki is the Clerk of Milwaukee County. As County
Clerk, Czarnezki has the authority to issue or withhold a marriage license, and to ensure
compliance with laws that prohibit the issuance of a marriage license to a same-sex couple.
Defendant Czarnezki has no authority to issue a marriage license to a same-sex couple. Answer
of Defendant Czarnezki to Amended Complaint 26 (Dkt. # 63). Wis. Stat. 765.05, 765.12,
765.20.

RESPONSE: State Defendants do not dispute Proposed Fact No. 20.
21. Defendant Wendy Christensen is the Clerk of Racine County. As County Clerk,
Christensen has the authority to issue or withhold a marriage license, and to ensure compliance
with laws that prohibit the issuance of a marriage license to a same-sex couple. Wis. Stat.
765.05, 765.12, 765.20.

RESPONSE: State Defendants do not dispute Proposed Fact No. 21.
22. Defendant Scott McDonell is the Clerk of Dane County. As County Clerk,
McDonell has the authority to issue or withhold a marriage license, and to ensure compliance
with laws that prohibit the issuance of a marriage license to a same-sex couple. Defendant
McDonell has no authority to issue a marriage license to a same-sex couple. Answer of
Defendant McDonnell to Amended Complaint 10 (Dkt # 61); Wis. Stat. 765.05, 765.12,
765.20.

RESPONSE: State Defendants do not dispute Proposed Fact No. 22.
IV. Additional Facts.
23. Plaintiffs Kami Young and Karina Willes face an imminent, irreparable harm
stemming from the marriage ban. Kami is due to deliver the couples first child, a daughter, on
April 3. Young Decl., 7; Willes Decl., 8. Although both Kami and Karina intend to love and
raise the child together, the State of Wisconsin will not recognize Karina as the babys mother.
In fact, as far as the law is concerned, Karina and the baby will be strangers. Young Decl. 7-8;
Willes Decl., 8-9. If Kami and Karina were a different-sex couple and allowed to marry,
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Karina would automatically be recognized as the babys parent. See Wis. Stat. 891.41(1)(a)
(presumption of parenthood for children born during a marriage). Young Decl., 8; Willes Decl.,
9.

RESPONSE: Dispute in part. The first sentence of the proposed finding is not a fact but
a conclusion of law. The last sentence of the proposed finding is not a fact but a conclusion of
law, and includes a misapprehension of Wisconsin law, Wis. Stat. 891.41(1)(a). Wisconsin
Stat. 891.41(1)(a) states:
A man is presumed to be the natural father of a child if any of the following
applies:

He and the child's natural mother are or have been married to each other and
the child is conceived or born after marriage and before the granting of a decree
of legal separation, annulment or divorce between the parties.

State Defendants dispute that Wis. Stat. 891.41(1)(a) would apply to automatically recognize
Willes as Youngs childs parent. Thus, the proposed finding is not supported by the evidence
cited.
24. And although adoption should be unnecessary if Kami and Karinas marriage
were recognized, Wisconsin law does not allow Karina to secure her parental rights through a
stepparent adoption. Wis. Stat. 48.82 (restricting stepparent adoption to a spouse of a childs
parent); Young Decl., 8; Willes Decl., 10.

RESPONSE: Dispute in part. State Defendants do not dispute that Wisconsin law does
not allow Plaintiff Willes to adopt Plaintiff Youngs child to whom she is biologically unrelated.
(See Plaintiffs Responses to State Defendants First Set of Requests for Admissions No. 22).
The remainder of the proposed finding is not a fact but a statement of opinion that is not
supported by admissible evidence.
25. Nor will Wisconsin allow Karina to take advantage of the second-parent adoption
process available in many other states. See Nadia Stewart, Adoption by Same-Sex Couples and
the Use of the Representation Reinforcement Theory to Protect the Rights of the Children,
17 TEX. WESLEYAN L. REV. 347, 354-56 (2011) (explaining that second-parent adoption allows
adoption of a child by an unmarried parents partner without requiring the first parent to
relinquish parental rights). Because of the marriage ban, Kami and Karina will be deprived of
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access to the same legal protections of their parental relationship with their child that are
available to married couples, for no other reason than that they are the same sex. Young Decl.
8; Willes Decl., 10.

RESPONSE: Dispute in part. State Defendants do not dispute that Wisconsin law does
not provide for the so-called second-parent adoption process that is purportedly available in other
states. State Defendants dispute the first sentence to the extent it is not a fact but a conclusion of
law. The second sentence of the proposed finding is not a fact but a conclusion of law, and
includes a misapprehension of Wisconsin law to the extent Plaintiffs claim the marriage ban
affects Wisconsin adoption law.
26. Plaintiffs William Hurtubise and Leslie Dean Palmer are suffering a similar
harm. Wisconsins adoption statute provides a straightforward process for joint adoption that is
limited to married couples. Wis. Stat. 48.82 (restricting joint adoption to married couples).
For this reason, two of their children were adopted only by Dean, with Bill as legal guardian.
Hurtubise Decl., 5, 9; Palmer Decl., 5, 9. They want to adopt their third child, over whom
they are both legal guardians, but their unmarried status remains an obstacle. Hurtubise Decl.,
5, 9; Palmer Decl., 5, 9. Because of the marriage ban, Bill and Dean cannot easily access
the same protections for children that are available to married couples. Hurtubise Decl., 9;
Palmer Decl., 9.

RESPONSE: Dispute in part. The first sentence of the proposed finding is not a fact but
a conclusion of law, and is not supported by citation to evidence. The second sentence of the
proposed finding is not a fact but a conclusion of law and Wisconsin state law speaks for itself
regarding the meaning of Wis. Stat. 48.82. The fourth sentence of the proposed finding is not a
fact but a conclusion of law. The fifth sentence is not a fact but a conclusion of law.
27. Furthermore, Plaintiffs Virginia Wolf and Carol Schumacher and Kami Young
and Karina Willes face the threat of prosecution under Wis. Stat. 765.30(1). That statute
makes it a criminal offense to leave the State of Wisconsin to enter into a marriage that is
considered void or prohibited here. Id. Both couples left Wisconsin to marry in Minnesota.
Wolf Decl., 14; Schumacher Decl., 13; Young Decl., 6; Willes Decl. 7.

RESPONSE: Dispute in part. The Court dismissed as moot Plaintiffs claims relating to
the evasion statute, and accordingly, the first sentence of the proposed finding is incorrect as a
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matter of law. (See Dkt. #97 at 3-4). The second sentence of the proposed finding includes a
misapprehension of Wisconsin law to the extent Plaintiffs claim the evasion statute criminalizes
Plaintiffs Wolf and Schumachers and Young and Willies out-of-state marriages. (See State
Defendants Memorandum in Support of Motion to Dismiss (Dkt. #67) at 8-11).
28. Moreover, all Plaintiff couples are being harmed irreparably by the State of
Wisconsins denial to them of the freedom to marry. Wolf Decl., 10-12; Schumacher Decl.,
8-10; Young Decl., 6-8; Willes Decl., 7, 9-10; Badger Decl., 8-15; Wangemann
Decl., 5-7, 10-15; Kemp Decl., 11-13; Carlson Decl., 9-11; Trampf Decl., 6-11;
Heyning Decl., 6-10; Garcia Decl., 10-12; Kleiss Decl., 12-13; Hurtubise Decl.,
8-10; Palmer Decl., 8-10; Wallmann Decl., 12-14; Borden Decl., 11-13.

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law.
29. First, Plaintiff couples are denied all of the state law protections and obligations
that are reserved to different-sex married couples in the State of Wisconsin. See, e.g., Wis. Stat.
891.41 (presumption of parenthood for child born to married parents); 48.82 (right to adopt a
spouses child and right of married couples to jointly adopt a child); 54.56 (eligibility for
visitation rights for the surviving spouse of a deceased parent of a minor child); 71.07(6) (state
married persons credit for tax purposes); 71.05(23)(b) (certain personal tax exemptions
applicable to spouses); 71.05(6)(b) 10 (state tax deduction for self-employed persons for costs of
medical insurance for spouse); 71.05(6)(b) 26 (state tax deduction for long-term care insurance
for a spouse); 45.61(2) (surviving spouses of veterans eligible for burial in Wisconsin veterans
cemeteries); 895.04(4) (right to seek damages for loss of society and companionship in
connection with wrongful death of a spouse); 610.70(f) (protection against disclosure by insurers
of health information obtained from an individuals spouse); 111.31(1) (protection against
discrimination in employment on the basis of marital status); 224.77(1)(o) (protection against
discrimination in mortgage lending on the basis of marital status); 106.50(1) (protection against
discrimination in housing on the basis of marital status); 766.31(2) (property of spouses is
presumed to be marital property); 45.51(2) (eligibility of spouses and surviving spouses of
veterans for admission to veterans homes); 861.01(1) (surviving spouse retains undivided
one-half interest in each item of marital property). See also Kemp Decl., 10-13; Carlson
Decl., 9-11; Trampf Decl., 6-11; Heyning Decl., 6-10; Hurtubise Decl., 9; Palmer
Decl., 9; Wallmann Decl., 12-14; Borden Decl., 11-13.

RESPONSE: Dispute. The proposed finding is not a fact but sixteen separate
conclusions of law. Additionally, Wisconsin state law speaks for itself regarding the meaning of
Wis. Stat. 891.41; 48.82; 54.56; 71.07(6); 71.05(23)(b); 71.05(6)(b)10.; 71.05(6)(b)26.;
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45.61(2); 895.04(4); 610.70(f); 111.31(1); 224.77(1)(o); 106.50(1); 766.31(2); 45.51(2);
and 861.01(1).
30. The unmarried Plaintiffs are also denied all federal spousal protections and
obligations. See United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (citing U.S. Govt
Accountability Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1
(2004) describing more than 1,000 federal laws in which marital or spousal status is addressed
as a matter of federal law.); see also, e.g., Kemp Decl., 12; Carlson Decl., 11; Trampf Decl.,
6-11; Heyning Decl., 9; Hurtubise Decl., 8; Palmer Decl., 8).

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law.
31. The married Plaintiffs are denied those federal spousal protections and obligations
that are reserved to couples whose marriages are recognized in their state of residence. See, e.g.,
29 C.F.R. 825.122(b) (ability to take time off of work to care for a sick spouse under the
Family & Medical Leave Act); 42 U.S.C. 416(h)(1)(A)(i) (access to a spouses social security
benefits). See also U.S. Social Sec. Administration Program Operations Manual System, GN
00210.100 (Windsor Same-Sex Marriage Claims), GN 00210.400 (Same-Sex Marriage
Benefits for Surviving Spouses), https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210000;
see also Wallmann Decl. 12-13; Borden Decl., 11-12.

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law.
32. Further, the unmarried Plaintiffs were deterred from leaving the state to marry and
thereby access some federal benefits by the fear of prosecution under Wis. Stat. 765.30(1).
Badger Decl., 17; Wangemann Decl., 17; Kemp Decl., 10; Carlson Decl., 9; Trampf
Decl., 11; Heyning Decl., 10; Garcia Decl., 4; Kleiss Decl., 4; Hurtubise Decl., 8;
Palmer Decl., 8.

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law. The
proposed finding also includes a misapprehension of Wisconsin law to the extent Plaintiffs claim
the evasion statute criminalizes out-of-state same-sex marriage. (See State Defendants
Memorandum in Support of Motion to Dismiss (Dkt. #67) at 8-11). Additionally, Wisconsin
state law speaks for itself regarding the meaning of Wis. Stat. 765.30(1).
33. Second, all Plaintiff couples suffer the ongoing dignitary harm of the States
denigration of their relationships and their families. Wolf Decl., 10-12; Schumacher Decl.,
8-10; Young Decl., 6-8; Willes Decl., 7, 9-10; Badger Decl., 8-15; Wangemann Decl.,
5-7, 10-15; Kemp Decl., 10-13; Carlson Decl., 9-11; Trampf Decl., 6-11; Heyning
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Decl., 6-10; Garcia Decl., 7-8; Kleiss Decl., 7-8; Hurtubise Decl., 8-10; Palmer
Decl., 8-10; Wallmann Decl., 12-14; Borden Decl., 11-13.

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law.
34. By withholding from these couples the respect, recognition, and support that only
marriage confers on a relationship, Wisconsin stigmatizes these couples as unworthy of the
opportunity to express and legally embody their commitment in the most serious way that society
provides. Wolf Decl., 10-12; Schumacher Decl., 8-10; Young Decl., 6-8; Willes Decl.,
7, 9-10; Badger Decl., 8-15; Wangemann Decl., 5-7, 10-15; Kemp Decl., 10-13;
Carlson Decl., 9-11; Trampf Decl., 6-11; Heyning Decl., 6-10; Garcia Decl., 11-13;
Kleiss Decl., 12-14; Hurtubise Decl., 8-10; Palmer Decl., 8-10; Wallmann Decl.,
12-14; Borden Decl., 11-13.

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law.
35. The marriage ban relegates Plaintiffs loving, committed relationships to a
second-class status below that accorded to different-sex married couples. Wolf Decl., 10-12;
Schumacher Decl., 8-10; Young Decl., 6-8; Willes Decl., 7, 9-10; Badger Decl.,
8-15; Wangemann Decl., 5-7, 10-15; Kemp Decl., 10-13; Carlson Decl., 9-11;
Trampf Decl., 6-11; Heyning Decl., 6-10; Garcia Decl., 10-12; Kleiss Decl., 12-13;
Hurtubise Decl., 8-10; Palmer Decl., 8-10; Wallmann Decl., 12-14; Borden Decl.,
11-13.

RESPONSE: Dispute. The proposed finding is not a fact but a conclusion of law.
36. The availability of domestic partnerships in Wisconsin does not ameliorate this
harm. Domestic partnerships are not always well understood, and are not accorded the same
degree of respect as marriage. Badger Decl., 15; Wangemann Decl., 6; Trampf Decl., 9;
Heyning Decl., 8; Wallmann Decl. 14; Borden Decl., 13. For example, on at least one
occasion, Plaintiff Judi Trampf was asked to show documentation to prove that she was in a
domestic partnership. Trampf Decl., 9; Heyning Decl., 8.

RESPONSE: Dispute in part. The first sentence of the proposed finding is not a fact but
a conclusion of law, and is not supported by citation to evidence. The second sentence of the
proposed finding is not a fact but a conclusion of law.
37. This harm extends to the children of Plaintiff couples Salud Garcia and Pam
Kleiss (Garcia Decl., 8; Kleiss Decl., 8), Bill Hurtubise and Dean Palmer (Hurtubise Decl.,
9-10; Palmer Decl., 9-10), Charvonne Kemp and Marie Carlson (Kemp Decl., 11;
Carlson Decl., 10), and the children and grandchildren of Virginia Wolf and Carol
Schumacher, who are subjected to the humiliation of the States refusal to recognize their
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families and family bonds as equally important, enduring, and meaningful as those of
different-sex parents and their children. Wolf Decl., 17; Schumacher Decl., 14.

RESPONSE: Dispute. Reference in the proposed finding to whom [t]his harm
purportedly extends in the proposed finding is not a fact but a conclusion of law.
38. Third, Plaintiff couples are harmed because the marriage ban invites other actors,
from employers to family members, to discriminate against Plaintiffs and their families. Kemp
Decl., 12; Carlson Decl., 11; Trampf Decl., 6-8; Heyning Decl., 6-7. For example,
when Carol Schumacher was employed by the city of Eau Claire, she was not permitted to take
family leave when she needed time off to care for Virginia Wolf. Wolf Decl., 11; Schumacher
Decl., 9. And on several occasions in the 1980s, Carol and Virginia tried to sign up for a family
membership at the YMCA in Eau Claire, but their applications were denied because the
YMCAs policy was to refuse to recognize a same-sex couple as a family. Wolf Decl., 10;
Schumacher Decl., 8. Salud Garcia repeatedly asked her employer to consider extending
health benefits to same-sex domestic partners on the same terms as different-sex married
spouses, but for ten years her employer refused. Garcia Decl., 9; Kleiss Decl., 9.

RESPONSE: Dispute in part. The first sentence of the proposed finding is not a fact but
a statement of opinion and a conclusion of law.
39. The harm caused by this discrimination is particularly acute in the health care
setting, where Plaintiffs have experienced a lack of respect for their relationships and a disregard
for their choices. Trampf Decl., 6-8; Heyning Decl., 6-7. In 2011, Garth Wangemann was
in a medically induced coma for more than a month. Despite having signed a power of attorney
designating Roy Badger as his health care decision maker, Garths father spoke to attorneys
about overriding Roys authority. Badger Decl., 10-12; Wangemann Decl., 8-12. In 2002,
when Judi Trampf and Katy Heyning were in New Orleans, Katy had a seizure and was
unconscious. Trampf Decl., 6; Heyning Decl., 6. A hospital employee told Judi that she
would not be permitted to make medical decisions on Katys behalf because she did not have
their signed power of attorney in her hand (the document was at home in Madison). Trampf
Decl., 6; Heyning Decl., 6. Carol Schumacher was refused admittance into the treatment area
of an emergency room to comfort Virginia Wolf when Virginia was experiencing chest pains,
ostensibly because Carol was not legally a family member. Schumacher Decl., 10.

RESPONSE: Dispute in part. The first sentence of the proposed finding is not a fact but
a statement of opinion and a conclusion of law.
40. Plaintiffs Johannes Wallmann and Keith Borden are suffering from the unique
dignitary and tangible harm of having their existing marriage nullified under Wisconsin law.
Wallmann Decl., 11-14; Borden Decl., 10-13. After living in a legally recognized marriage
in California, where they moved when Johannes was offered a full-time teaching job, for more
than four years, and after building a life together in reliance on the protections and benefits that
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marriage provides, they are now considered legal strangers to each other by the state of
Wisconsin. Wallmann Decl., 8, 11-14; Borden Decl., 8, 10-13.

RESPONSE: Dispute. The first sentence of the proposed finding is not a fact but a
statement of opinion and a conclusion of law. The first sentence also includes a misapprehension
of Wisconsin law to the extent Plaintiffs claim that Wisconsin law nullified Plaintiffs
Wallmann and Bordens marriage. (See State Defendants Memorandum in Support of Motion
to Dismiss (Dkt. #67) at 22-25; Response of State Defendants Walker, Van Hollen, and
Anderson in Opposition to Plaintiffs Motion for Summary Judgment, III.A.2). The second
sentence of the proposed finding is not a fact but a statement of opinion and a conclusion of law.
41. The purpose of the marriage amendment was to permanently deprive same-sex
couples of the right to marry or to have their marriages recognized in Wisconsin. The legislative
sponsors of the amendment specifically noted that the freedom to marry for same sex couples
was being recognized in other states and offered the amendment as a way to prevent same-sex
marriage from being legalized in this state. Declaration of Laurence J. Dupuis (Dupuis
Decl.), Ex 1 (CoSponsorship Memo). Thus, the purpose of the amendment was to treat
same-sex couples differently from different-sex couples simply because of a desire to disfavor
those couples.

RESPONSE: Dispute in part. The first sentence of the proposed finding is not a fact but
a statement of opinion that is not supported by admissible evidence. Moreover, the first of
the proposed finding is contrary to the Wisconsin Supreme Courts finding in McConkey v.
Van Hollen, 2010 WI 57, 53, 326 Wis. 2d 1, 783 N.W.2d 855 (finding the Marriage
Amendment was an effort to preserve and constitutionalize the status quo, not to alter the
existing character or legal status of marriage). (See also Response of State Defendants
Walker, Van Hollen, and Anderson in Opposition to Plaintiffs Motion for Summary
Judgment, III.B.1.). The second sentence of the proposed finding is undisputed, but is
incomplete. (See, e.g., Dkt. #73-3 at 2, 73-4 at 16). The third sentence of the proposed finding is
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not a fact but a statement of opinion and a legal conclusion that is not supported by admissible
evidence.
Dated this 9th day of May, 2014.
Respectfully submitted,

J.B. VAN HOLLEN
Attorney General


s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968

THOMAS C. BELLAVIA
Assistant Attorney General
State Bar #1030182

CLAYTON P. KAWSKI
Assistant Attorney General
State Bar #1066228

Attorneys for Defendants,
Scott Walker, J.B. Van Hollen,
and Oskar Anderson

Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3542 (Samuelson)
(608) 266-7477 (Kawski)
(608) 266-8690 (Bellavia)
(608) 267-2223 (fax)
samuelsontc@doj.state.wi.us
kawskicp@doj.state.wi.us
bellaviatc@doj.state.wi.us
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