2:14-cv-02518 #57

Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 1 of 6
IN THE UNITED STATED DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN,
and KERRY WILKS, Ph.D., and DONNA
DITRANI, JAMES E. PETERS and GARY A.
MOHRMAN; CARRIE L. FOWLER and
SARAH C. BRAUN; and DARCI JO
BOHNENBLUST and JOLEEN M.
HICKMAN,
Plaintiffs,
v.
)
)
)
)
)
)
)
) Case No. 14-CV-2518-DDC-TJJ
)
)
ROBERT MOSER, M.D., in his official capacity )
as Secretary of the Kansas Department of
)
Health and Environment and
)
DOUGLAS A. HAMILTON, in his official
)
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.
)
_________________________________________)
MOTION OF DEFENDANT MOSER TO
DISMISS AMENDED COMPLAINT
Defendant Robert Moser, M.D. hereby moves for dismissal of all claims against him
based on lack of subject matter jurisdiction, including Eleventh Amendment immunity, lack of an
Article III case or controversy, and mootness.
1. Dr. Moser has resigned his position as Secretary of the Kansas Department of Health
and Environment, effective November 30, 2014. Because he no longer holds any
official position with the agency that supplies marriage-related forms to Kansas
1
district courts, the relief sought against him is unavailable as a matter of law.
2. New gender-neutral forms have already been distributed by KDHE to Kansas district
courts for use by same-sex marriage applicants. Prospective injunctive relief is
therefore unavailable against Dr. Mosers successor.
3. For the reasons set forth in the motion to dismiss filed on behalf of the defendant
court clerks, the plaintiffs who seek relief against Dr. Moser lack Article III standing
to litigate the issues they raise. These plaintiffs have not taken advantage of their
opportunity to marry one another, despite the fact that the courts where they applied
for marriage licenses before filing suit are now accepting same-sex applications. Any
supposed controversy between these plaintiffs and any of the defendants is therefore a
sham. If these plaintiffs have taken advantage of the availability of the marriage
process in other counties, then their claims have become moot because they are no
longer unmarried persons.
4. Attached hereto are affidavits from the defendant court clerks, Dr. Moser, and Deputy
Chief Counsel Tim Keck setting forth the factual basis for the above defenses.
ARGUMENT AND AUTHORITIES
1. ELEVENTH AMENDMENT IMMUNITY
Federal courts are courts of limited jurisdiction. Lack of jurisdiction is presumed. The
burden of establishing federal court jurisdiction falls on the party asserting that jurisdiction exists.
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 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).

A factual attack on the Courts jurisdiction is appropriately made in the form of a motion
to dismiss, even though matters outside the complaint are relied upon. When a factual attack is
made against the Courts subject matter jurisdiction, the Court is not required to assume the truth
of the complaints factual allegations. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d
1270, 1272 (10th Cir. 2012).
The Eleventh Amendment bars federal court lawsuits against a state or its officials acting
within their official capacities, with a narrow exception allowing for prospective injunctive relief
against individual officials for their ongoing violations of federal rights. See Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). No such prospective injunctive relief can be
obtained against Dr. Moser. When a claim for injunctive relief is brought against a state official
who is not involved in the enforcement of an allegedly unconstitutional statute, Eleventh
Amendment immunity applies and requires dismissal of the claim. See Peterson v. Martinez, 707
F.3d 1197, 1205-1206 (10th Cir. 2013).
2. NO CASE OR CONTROVERSY
Dr. Moser no longer has any official capacity relating to the preparation and distribution
of Kansas marriage forms. If plaintiffs seek to amend to sue him in his individual capacity for
past acts, he will be protected by qualified immunity. See Guttman v. Khalsa, 669 F.3d 1101
(10th Cir. 2012). Declaratory relief is not appropriate against him in these proceedings, because
plaintiffs have repeatedly claimed (and the Court has apparently agreed) that existing precedents
of the Tenth Circuit Court of Appeals control the outcome. As a general rule, where a law has
been declared unconstitutional by a controlling court, pending requests for identical declaratory
relief become moot. See Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1269 (N.D. Okla.)
aff'd sub nom. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) cert. denied, 135 S. Ct. 271 (2014)
The sole claims now asserted against Dr. Moser are made by the original Plaintiffs, Marie,
Brown, Wilks and DiTrani. The allegations in the Complaint that they are being prevented from
seeking or receiving a license by these Clerks is demonstrably false, and is an apparent attempt
to create federal jurisdiction where none exists. The claim that any Kansas district court clerk is
acting under orders from Dr. Moser or any other KDHE executive director in deciding whether to
issue a marriage license to same-sex applicants is also a demonstrably incorrect statement of
Kansas law.
3. MOOTNESS
No Kansas statute requires the use of marriage-related forms that make explicit reference
to the sex of the applicants for a marriage license. Dr. Moser clearly had the discretion under
Kansas law to distribute gender-neutral forms, and he exercised that discretion shortly before he
left office. There is no reason to assume that his successors will recall the new forms. To the
extent that Dr. Moser was ever a proper party (a dubious conclusion at best) he certainly is not
now, nor would his successor be a proper party. Whatever supposed controversy may have
existed between plaintiffs and Dr. Moser is therefore undeniably moot.
Plaintiffs are not allowed to continue litigating a moot case just because they seek
declaratory relief:
[W]hat makes a declaratory judgment action a proper judicial resolution of a case or
controversy rather than an advisory opinion is the settling of some dispute which affects
the behavior of the defendant toward the plaintiff. Rio Grande Silvery Minnow, 601 F.3d
at 110910. The crucial question is whether granting a present determination of the
issues offered will have some effect in the real world. Id. at 1110 (internal citation
omitted); see also Rezaq, 677 F.3d at 1008 ([I]n the context of an action for declaratory
relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly
harmed by the defendant.); Wirsching, 360 F.3d at 1196 (same).
*
*
4
[T]he possibility of recovering attorney fees or costs is not a sufficient reason to

enter judgment in an otherwise moot case. See R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d
1103, 1108 (10th Cir.2007) (explaining that a claim of entitlement to attorney fees does
not preserve a moot cause of action); In re West. Pac. Airlines, Inc., 181 F.3d 1191, 1196
(10th Cir.1999) (Precedent clearly indicates that an interest in attorney's fees is
insufficient to create an Article III case or controversy where a case or controversy does
not exist on the merits of the underlying claim.). See Bishop v. U.S. ex rel. Holder, 962
F. Supp. 2d 1252, 1269, 1271, (N.D. Okla.) aff'd sub nom. Bishop v. Smith, 760 F.3d
1070 (10th Cir. 2014) cert. denied, 135 S. Ct. 271 (2014).
As the affidavits submitted by all defendants confirm, there was never any genuine grievance
involving Dr. Moser, whose role was not to enforce Kansas marriage laws by preventing district
court judges and clerks from accepting applications for same-sex marriages. The Court is not
obligated to entertain the fanciful view of Kansas marriage law set forth in the amended
complaint when the laws themselves and the persons involved in enforcing them plainly state
otherwise.
CONCLUSION
For all of the above stated reasons Dr. Moser should be dismissed from this litigation for
lack of subject matter jurisdiction under the Eleventh Amendment, lack of Article III standing,
and mootness of the supposed controversy.
Respectfully submitted,
OFFICE OF THE ATTORNEY GENERAL
DEREK SCHMIDT
s/Steve R. Fabert
Steve R. Fabert, #10355
Assistant Attorney General
120 S.W. 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420
Fax: (785) 296-6296
Email: steve.fabert@ag.ks.gov
Attorney for Defendant Moser
5
CERTIFICATE OF SERVICE
This is to certify that on this 18th day of November, 2014, a true and correct copy of the
above and foregoing Answer was filed by electronic means via the Courts electronic filing system which serves a copy upon Plaintiffs counsel of record, Stephen Douglas Bonney, ACLU
Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111 and Mark P. Johnson, Dentons
US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111, dbonney@aclukansas.org and
Mark.johnson@dentons.com and Joshua A. Block, American Civil Liberties Foundation, 125
Broad Street, 18th Floor, New York, NY 100004, jblock@aclu.org.
s/Steve R. Fabert
Steve R. Fabert
Attorney for Defendant Moser
Case 2:14-cv-02518-DDC-TJJ Document 57-1 Filed 12/10/14 Page 1 of 3
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
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)].

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
Page 1 of 2
This information is strictly confidential and is not released in identifiable form.

30. NUMBER OF THIS MARRIAGE First, Second,
etc. (Specify below)
31. IF PREVIOUSLY MARRIED, LAST MARRIAGE ENDED

SOCIAL SECURITY 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
Page 2 of 2

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
AFFIDAVIT OF BERNIE LUMBRERAS
STATE OF KANSAS
COUNTY OF SEDGWICK
) ss:
)
I, Bernie Lumbreras, being first duly sworn, on oath, depose and say that:
1. I am the Clerk of the District Court of Sedgwick County, Kansas, Eighteenth
Judicial District. I was appointed to this position on December 18, 2005. In that
capacity, I supervise deputy clerks in performing the functions imposed by law
on clerks of the district court in Kansas. My deputy clerks and I are judicial
officers of the State of Kansas and are employed by the State of Kansas as part of
the Kansas Judicial Branch.
2. As clerks of the court, we perform our duties in accordance with legal
requirements as per K.S.A. 20-3102 and as communicated to us under the
supervision of the Chief Judge, at this point, Chief Judge James R. Fleetwood.
3. One of the functions of my office is to issue marriage licenses as per K.S.A.
2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may
be issued by either judges or clerks. In performing this function, I and the clerks
operating under my supervision act as an aide to the twenty-eight (28) judges of
the 18th Judicial District who would otherwise be performing this function.
4. 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.
5. On November 13,2014, Judge Fleetwood issued Administrative Order 14-08, a
certified copy of which is attached as Exhibit A hereto. In that Order, Judge
Fleetwood directs the Clerks to issue marriage licenses without consideration of
gender of the applicants.
6. According to records maintained in my office, the Plaintiffs in this case, Kerry
Wilks and Donna DiTrani, applied for a marriage license on October 9,2014.
We did take the application on that date. We keep applications on file for one
year.
7. To date, neither Wilks nor DiTrani have returned to the Clerk's Office to submit
a completed worksheet or to request issuance of a marriage license.
8. My Office has no record ofKail Marie or Michelle L. Brown having appeared in

my office to apply for a marriage license.
9. Except for recognized holidays, my Office is open for business, induding but not
limited to accepting applications for marriage licenses and issuing licenses, every
week day from 8 a.m. to 4 p.m.
FURTHER AFFIANT SAITH NOT.
Bernie Lumbreras
Subscribed and Sworn to before the undersigned this
2014.
=:
NOTARY PUBLIC State of Kansas
TINA L. HARRIS N
My Appt Expires I
0
1_
My Appointment Expires:
-k~~J
Notary Public
/1 /10/..;101-;;
I
~aay of December,
IN THE UNITED STATED DISTRICT COURT

FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN,

and KERRY WILKS, Ph.D., and DONNA
DITRANI,
Plaintiffs,
)
)
)
v.
) Case No. 14-CV-2518-DDC-TJJ

)
)
ROBERT MOSER, M.D., in his official capacity

as Secretary of the Kansas Department of
Health and Environment and
DOUGLAS A. HAMILTON, in his official
Capacity as Clerk of the District Court for the 7th
Judicial District (Douglas county), and
BERNIE LUMBRERAS, in her official capacity
as Clerk of the District Court for the 18th
Judicial District (Sedgwick County),
Defendants.
)
)
)
)
)
)
)
)
)
)
-------------------------------- )
AFFIDAVIT OF BERNIE LUMBRERAS
STATE OF KANSAS
COUNTY OF SEDGWICK
) ss:
)
I, Bernie Lumbreras, being first duly sworn, on oath, depose and say that:
1. I am the Clerk of the District Court of Sedgwick County, Kansas, Eighteenth
Judicial District. I was appointed to this position on December 18, 2005. In that
capacity, I supervise deputy clerks in performing the functions imposed by law
on clerks of the district court in Kansas. My deputy clerks and I are judicial
officers of the State of Kansas and are employed by the State of Kansas as part of
the Kansas Judicial Branch.
2. Neither I nor the clerks operating under my supervision discriminate against any
person or operate under any sort of personal belief or animus. We perform our
duties in accordance with legal requirements as per K.S.A. 20-3102 and as
communicated to us under the supervision of the Chief Judge, at this point, Chief
Judge James R. Fleetwood.
3. One of the functions of my office is to issue marriage licenses as per K.S.A.
2014 Supp. 23-2505. Under K.S.A. 2014 Supp. 23-2505, marriage licenses may
be issued by either judges or clerks. In performing this function, I and the clerks
operating under my supervision act as an aide to the twenty-eight (28) judges of
the 18th Judicial District who would otherwise be performing this function.
4. 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.
5. I do not authorize persons to perform marriage rites; the Clerks have no role in
the function set forth in K.S.A. 2014 Supp. 23-2504.
6. Any determination as to the issuance of a license to Kerry Wilks or Donna
DiTrani was made by Chief Judge James R Fleetwood or Judge Eric Yost acting
in Chief Judge Fleetwood's absence. It was not made by me or by my clerks.
7. My office is also in compliance with the Supreme Court's October 10,2014,
Order in State ex rei. Schmidt v. Moriarty which is consistent with the directions
of Chief Judge Fleetwood.
8. Neither I nor my clerks have any role in deciding whether a person is authorized
to file a joint tax return in Kansas.
9. Neither I nor my clerks have any role in determining whether a person is entitled
to inherit property through intestate succession in Kansas.
FURTHER AFFIANT SAITH NOT.
Bernie Lumbreras
Subscribed and Sworn to before the undersigned this 0"
9t t, day of October, 2014.

-
C~-ad
No
ubc
My Appointment Expires: :? -/-18
CATHY STEPPPRATT
NOTARY PUBLIC
STATE OF KANSAS
My Appl Exp .
.3 -1-18
"
14MV 618
18th JUDICIAL DISTRICT
ADMINISTRATIVE ORDER It..{ -t:)
"
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APP8&~t(ll1 Rm. ff"'"
is
lll' NOY 13 A II: 25
th
Now on this 13 day of November. 2014, the matter comes before

' .
Judge of the 18th Judicial District. concerning the issuance of same sex
nf:rriag~'
licenses. As Chief Judge it is recognized that a suit naming the clerk of the 18th judicial
district as a party has been brought in the United States District Court for the District of
Kansas challenging the constitutionality ~f Article 15 Section 16 of the Kansas
Constitution that prohibits the issuance of same sex marriage licenses in the State of
Kansas. Said legal action is known as Kail Marie, et aI, v. Robert Moser et al.
In Kail Marie the United States District Court issued an injunction prohibiting the
Clerk of the Court of Douglass and Sedgwick County, Kansas from denying the
marriage applications of same sex couples. Central to the court's ruling was a finding
that the continual denial of said license was a violation of the United States Constitution
because it resulted in discrimination and a violation of the equal protection clause of the
constitution.
Appeal from this order was taken to the 10th Circuit Court of Appeals. A panel of
the 10th Circuit Court of Appeals affirmed the action of the District Court. This issue was
then appealed to the United States Supreme Court. By a vote of seven to two, The
United States Supreme Court refused to grant a further stay of the original order
prohibiting the issuance of same sex marriage licenses in the State of Kansas. The
order of the United States Supreme Court directs the State of Kansas and parties to the
Kail Marie lawsuit to issue marriage licenses to same sex couples.
niJ
Therefore the clerk of the court and her staff are hereby ordered and directed to
issue marriage licenses without consideration of gender of the applicants in accordance
with the order of the United States Supreme Court and to otherwise comply with all
other requirements related to issuing said marriage licenses generally.
IT IS SO ORDERED.
1.!

2:14-cv-02518 #57

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Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 1 of 6

IN THE UNITED STATED DISTRICT COURT

Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 2 of 6

Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 3 of 6

Players Ass'n, 95 F.3d 959, 964 (10th Cir.1996).

Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 4 of 6

Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 5 of 6

[T]he possibility of recovering attorney fees or costs is not a sufficient reason to

Case 2:14-cv-02518-DDC-TJJ Document 57 Filed 12/10/14 Page 6 of 6

Case 2:14-cv-02518-DDC-TJJ Document 57-1 Filed 12/10/14 Page 1 of 3

Case 2:14-cv-02518-DDC-TJJ Document 57-1 Filed 12/10/14 Page 2 of 3

Case 2:14-cv-02518-DDC-TJJ Document 57-1 Filed 12/10/14 Page 3 of 3

Case 2:14-cv-02518-DDC-TJJ Document 57-2 Filed 12/10/14 Page 1 of 7

Case 2:14-cv-02518-DDC-TJJ Document 57-2 Filed 12/10/14 Page 2 of 7

Case 2:14-cv-02518-DDC-TJJ Document 57-2 Filed 12/10/14 Page 3 of 7

Application for Certified Copy of Kansas Marriage Certificate

Form VS-237 rev 11/14

Reason for Request (PLEASE BE SPECIFIC):

Requestor's relationship to person on the Certificate? (Check one)

K.A.R. 28-17-6 requires the following fee(s).

Check one: Bride______ Groom______ Spouse _______

LAST(maiden or previous married surname )

Check one: Bride______ Groom______ Spouse _______

County that issued license:

$15 per Certified Copy

*Requirements-Read before turning in application

This request form must be completed.

Kansas Office of Vital Statistics

Office hours:(live phones)

Case 2:14-cv-02518-DDC-TJJ Document 57-2 Filed 12/10/14 Page 4 of 7

ONE form of Primary Documentation required from list below

Please make a copy of one of the following documents and send

Temporary Driver's License

Read: IMPORTANT MISCELLANEOUS INFORMATION

WARNING: COPYING, ALTERING, or FRAUDULENT ACTIVITY PROHIBITED

Case 2:14-cv-02518-DDC-TJJ Document 57-2 Filed 12/10/14 Page 5 of 7

Worksheet for Marriage Registration

License number (court use only) _________________________

Check One: Groom

1. LEGAL NAME FIRST

2. LAST NAME PRIOR TO FIRST MARRIAGE (If different)

3. DATE OF BIRTH (Month, Day, Year)

4. BIRTHPLACE (State or Foreign Country)

RESIDENCE STATE OR FOREIGN COUNTRY

FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE

Check One: Groom

10. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE

11. BIRTHPLACE (State or

12. LEGAL NAME- FIRST

13. LAST NAME PRIOR TO FIRST MARRIAGE (If different)

14. DATE OF BIRTH (Month, Day, Year)

15. BIRTHPLACE (State or Foreign Country)

16. RESIDENCE STATE OR FOREIGN COUNTRY

17. COUNTY OR PROVINCE

18. CITY OR TOWN

19. FATHER/PARENT NAME PRIOR TO FIRST MARRIAGE

21. BIRTHPLACE (State or

22. MOTHER/PARENT NAME PRIOR TO FIRST MARRIAGE

23. BIRTHPLACE (State or

If one or both applicants are under 18, this information is required:

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?

Check one: Bride Groom Spouse ___

Check one: Bride Groom Spouse ___