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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

KAIL MARIE, et al.,

Plaintiffs,

v.

SUSAN MOSIER, M.D., in her official capaci-ty as Secretary of the Kansas Department ofHealth and Environment, et al. ,

Defendants.

))

)))))))))

Case No. 14-cv-2518

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

I. Statement of Undisputed Material Facts

Challenged Laws

1. In their First Amended Complaint, Doc. 52, ¶ 3, Plaintiffs challenge the following

statutes and constitutional amendment, as well as any other law or policy that prohibits same-sex

couples from marrying or denies legal recognition to their marriages:

a.

K AN. CONST ., art. 15, § 16: “(a) The marriage contract is to be considered in law

as a civil contract. Marriage shall be constituted by one man and one woman only.

All other marriages are declared to be contrary to the public policy of this state

and are void. (b) No relationship, other than a marriage, shall be recognized by

the state as entitling the parties to the rights or incidents of marriage.”

b. Kan. Stat. Ann. § 23-2501: “The marriage contract is to be considered in law as a

civil contract between two parties who are of opposite sex. All other marriages are

declared to be contrary to the public policy of this state and are void. The consent

of the parties is essential. The marriage ceremony may be regarded either as a civ-

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il ceremony or as a religious sacrament, but the marriage relation shall only be en-

tered into, maintained or abrogated as provided by law.”

c. Kan. Stat. Ann. § 23-2508: “All marriages contracted without this state, which

would be valid by the laws of the country in which the same were contracted,

shall be valid in all courts and places in this state. It is the strong public policy of

this state only to recognize as valid marriages from other states that are between a

man and a woman.”

Marriage Licensure Claims

2.

Plaintiffs Kail Marie and Michelle L. Brown have been together in a committed,loving same-sex relationship for more than twenty-one years. They live together in Lecompton,

Douglas County, Kansas, and wish to marry each other in Kansas. Second Declaration of Kail

Marie, ¶ 2 ; Second Declaration of Michelle L. Brown, ¶ 2.

3. Plaintiffs Kerry Wilks and Donna DiTrani have been together in a committed, lov-

ing same-sex relationship for more than five years. They live together in Wichita, Sedgwick

County, Kansas, and wish to marry each other in Kansas. Second Declaration of Kerry Wilks,

Ph.D., ¶ 2; and Second Declaration of Donna DiTrani, ¶ 2.

4. Susan Mosier, M.D., is the current Secretary of KDHE. See KDHE website,

http://www.kdheks.gov/administration/ (last checked Feb. 9, 2015); KDHE press release dated

Dec. 19, 2014, available at http://www.kdheks.gov/news/web_archives/2014/12192014.htm

(last checked Feb. 9, 20115).1

1 Plaintiffs ask the Court to take judicial notice of the fact that Defendant Mosier is the Secretaryof the Kansas Department of Health & Environment and of other similar facts alleged in this

brief that can be verified by reference to governmental websites. The Tenth Circuit has held thatit is appropriate for trial courts “to take judicial notice of factual information found on theworldwide web.” O’Toole v. Northrup Grumman Corp. , 499 F.3d 1218, 1225 (10th Cir. 2007).


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5. On October 10, 2014, when Plaintiffs filed their original Complaint in this case,

Defendant Robert Moser, M.D., was the Secretary of the Kansas Department of Health and Envi-

ronment (“KDHE”). Complaint, Doc. 1, ¶ 8; Answer of Defendant Moser, Doc. 48, ¶ 5.

6. The official duties of the Secretary of KDHE include directing and supervising

Kansas’s system of vital records. See Kan. Stat. Ann. § 75-6501 (creation of office of Secretary

of KDHE); § 75-6502 (transfer of powers & duties to office of Secretary of KDHE); § 75-

6504(a) (transfer of duties regarding vital records, generally); and §§ 65-2402 to 65-2406 (Secre-

tary’s duties with regard to vital records).

7.

With respect to marriage licenses issued in the State of Kansas, the Secretary ofKDHE must: (a) supervise the registration of all marriage records issued in the State of Kansas,

Kan. Stat. Ann. § 23-2507; (b) furnish forms used throughout the State of Kansas for the mar-

riage license process, Kan. Stat. Ann. § 23-2509; and (c) maintain a publicly available vital rec-

ords index of marriages and issue certified copies of marriage licenses upon request, Kan. Stat.

Ann. § 23-2512 (providing that such certified copies constitute prima facie evidence of the mar-

riages in “all courts and for all purposes”).

8. Douglas A. Hamilton is the Clerk of the District Court for the 7th Judicial District,

also known as the Douglas County District Court, which sits in Lawrence, Kansas. Complaint,

Doc. 1, ¶ 9; Answer of Defendants Hamilton & Lumbreras, Doc. 49, ¶ 5.

9. Defendant Bernie Lumbreras is the Clerk of the District Court for the 18th Judi-

cial District, also known as the Sedgwick County District Court, which sits in Wichita, Kansas.

Complaint, Doc. 1, ¶ 10; Answer of Defendants Hamilton & Lumbreras, Doc. 49, ¶ 5.

10. Kansas law provides that “[t]he clerks of the district courts or judges thereof,

when applied to for a marriage license by any person who is one of the parties to the proposed


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marriage and who is legally entitled to a marriage license, shall issue a marriage license[.]” Kan.

Stat. Ann. § 23-2505(a).

11. In Kansas, district court clerks, including Defendants Hamilton and Lumbreras,

have the following duties with respect to the issuance of marriage licenses: (a) requiring people

contemplating marriage to state under oath the information required for the marriage record and

delivering certificates of that information to the parties along with the marriage license, Kan.

Stat. Ann. § 23-2505(d & e); (b) levying and collecting a tax on each marriage license, Kan. Stat.

Ann. § 23-2510; (c) filing and preserving the originals and indexing the names of both spouses

upon return of the marriage license and certificate from the officiant, Kan. Stat. Ann. §§ 23-2511(a) & 23-2514; and (d) forwarding a record of each marriage to the Secretary of the KDHE,

Kan. Stat. Ann. § 23-2511(a). See generally Kan. Stat. Ann. §§ 23-2501 to 23-2518.

12. Plaintiffs Marie and Brown and Plaintiffs Wilks and DiTrani meet all of the re-

quirements Kansas imposes for the issuance of a marriage license except that these Plaintiffs

want to marry a person of the same sex. Second Declarations of Marie, Brown, Wilks & DiTrani,

¶ 4.

13. On October 8, 2014, Plaintiff Kail Marie appeared in person at the office of the

Clerk of the District Court of Douglas County, Kansas, requested and was given a marriage li-

cense application which was returned to the deputy clerk who then gave Plaintiff Marie a mar-

riage license worksheet along with the instruction to return no sooner than Tuesday, October 14,

2014 absent waiver of the three-day statutory waiting period, or words to that effect. Complaint,Doc. 1, ¶ 16; Answer of Defendants Hamilton & Lumbreras, Doc. 49, ¶ 7. See also Second Dec-

laration of Kail Marie, ¶ 5.


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14. On Thursday, October 9, 2014, Chief Judge Robert W. Fairchild of the Seventh

Judicial District issued Administrative Order 14-13. See Doc. 49-1, certified copy of Admin.

Ord. 14-13 (attached to Answer of Defendants Hamilton & Lumbreras). Administrative Order

14-13 provided that “[t]he court performs an administrative function when it issues a marriage

license,” indicated that in exercising that administrative function the district court is bound to

apply and follow existing Kansas laws, and concluded by saying that “[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.” Id .

15.

On October 16, 2014, Plaintiffs Marie and Brown returned to the office of theClerk of the Douglas County District Court, were told that their application for a marriage li-

cense was denied, and were given a copy of Administrative Order 14-13. Second Declaration of

Kail Marie, ¶ 6; Second Declaration of Michelle L. Brown, ¶ 5.

16. On October 9, 2014, Plaintiffs Wilks and DiTrani submitted a fully executed ap-

plication for a marriage license to a deputy clerk at the office of the Clerk of the District Court

for the 18th Judicial District in Wichita, Kansas. Second Declaration of Kerry Wilks, Ph.D., ¶ 5;

and Second Declaration of Donna DiTrani, ¶ 5. At that point, the deputy clerk – reading from a

prepared statement – told Plaintiffs Wilks and DiTrani that their application for a marriage li-

cense was denied because same-sex marriages violate provisions of the Kansas Constitution and

that the office of the District Court Clerk for the 18th Judicial District will not issue marriage

licenses to same-sex couples until a court rules otherwise. Id. See also Answer of Defendants

Hamilton & Lumbreras, Doc. 49, ¶ 12.


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17. On November 4, 2014, this Court issued its Memorandum and Order preliminarily

enjoining enforcement of the challenged Kansas marriage laws by Defendants Moser, Hamilton,

and Lumbreras. Doc. 29, p. 38.

18. On November 5, 2014, Defendants Moser, Hamilton and Lumbreras filed a Notice

of Appeal, Doc. 30, and on November 6, 2014, Defendants filed with the Tenth Circuit an Emer-

gency Motion for Stay of Preliminary Injunction. 2 In an order filed on November 7, 2014, a two

judge panel of the Tenth Circuit denied Defendants’ Emergency Motion for Stay.

19. On November 10, 2014, Defendants filed with the United States Supreme Court

an Emergency Application to Stay Preliminary Injunction Pending Appeal. On November 12,2014, the Supreme Court denied the Emergency Application after which the District Court’s pre-

liminary injunction took effect. Doc. 41.

20. After the Supreme Court denied Defendants’ application for a stay pending appeal

and in order to comply with this Court’s preliminary injunction, the chief judges of the Douglas

County and Sedgwick County District Courts issued new Administrative Orders that directed the

district court clerks and their staffs to issue marriage licenses without consideration of the gender

of the applicants. See Douglas Co. Dist. Ct. Admin. Ord. 14-17, attached to Aff. of Douglas

Hamilton, Doc. 59-1; Sedgwick Co. Dist. Ct. Admin. Ord. 14-03, filed as Doc. 59-3. The Doug-

las County Order expressly states that, “[i]n compliance with this preliminary injunction this

court rescinds Administrative Order 14-17 [ sic ] and instructs the Clerk of the District Court to

2 Pursuant to Fed. R. Evid. 201(b), Plaintiffs ask the Court to take judicial notice of Defendants’filings in Tenth Circuit Case No. 14-3246 and in U.S. Supreme Court Case No. 14A503.“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts,

both within and without the federal judicial system, if those proceedings have a direct relation tomatters at issue.” St. Louis Baptist Temple, Inc. v. Federal Deposit Ins. Corp ., 605 F.2d 1169,1172 (10th Cir. 1979).


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issue marriage licenses to all qualified applicants without regard to the gender of the applicant.”

Doc. 59-1, p. 3.

21. Plaintiffs Marie and Brown and Plaintiffs Wilks and DiTrani intend to re-apply

for marriage licenses once this case has been fully litigated to final judgment and any appeals are

exhausted. Second Declarations of Marie, ¶ 7, Brown, ¶ 6, Wilks, ¶ 6, & DiTrani, ¶ 6.

Marriage Recognition Claims

Recognition Plaintiffs

22. James E. Peters and Gary A. Mohrman have been together in a committed, loving

same-sex relationship for nearly thirty-five years, and they reside in Lawrence, Kansas. SecondDeclaration of James E. Peters, ¶ 2. Their marriage was solemnized on July 31, 2010, in Dubu-

que, Iowa. Id ., ¶ 3.

23. Carrie L. Fowler and Sarah C. Braun have been together in a committed, loving

same-sex relationship for more than two years, and they reside in McClouth, Kansas. Second

Declaration of Carrie L. Fowler, ¶ 2. Their marriage was solemnized on June 7, 2014 in Chica-

go, Illinois. Id ., ¶ 3.

24. Darci Jo Bohnenblust and Joleen M. Hickman have been together in a committed,

loving same-sex relationship for more than nineteen years, and they reside in the City of Riley,

Kansas. Second Declaration of Darci Jo Bohnenblust, ¶ 2. Their marriage was solemnized on

November 13, 2014, in Riley County, Kansas. Id ., ¶ 4.

Recognition Claim against Defendant Jordan Related to Income-Tax Filing Status

25. Defendant Nick Jordan is the Secretary of the Kansas Department of Revenue

(hereafter “KDOR”). See http://www.ksrevenue.org/secretary.html (last checked Feb. 9, 2015).


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31. Plaintiffs Peters and Mohrman filed their 2013 federal income tax returns as “mar-

ried, filing separately.” Second Peters Decl., ¶ 12.

32. Because of the KDOR’s refusal to allow married same-sex couples to file state in-

come tax returns as “married filing jointly” or “married filing separately,” Plaintiffs Peters and

Mohrman had to prepare both married federal tax returns for federal filing purposes and single

federal tax returns in order to prepare state single tax returns. Id. , ¶ 13. The preparation of those

multiple tax returns caused Plaintiffs Peters and Mohrman to expend additional time and re-

sources that would not be required of different-sex couples. Id.

Claims Against Defendants Jordan & Kaspar Related to Drivers’ License Name Change 33. The KDOR includes a Division of Vehicles, the head of which is the Director of

Vehicles, who is appointed by and administers the Division of Vehicles under the supervision of

the Secretary of KDOR, currently Defendant Jordan. Kan. Stat. Ann. § 75-5110.

34. Defendant Lisa Kaspar is the incumbent Director of the Division of Vehicles. See

Roger Cornish, “Kansas Has New Director of Vehicles,” Nov. 1, 2013, available at

http://www.kwch.com/news/local-news/kansas-has-new-director-of-vehicles/22760866 (last

checked Feb. 10, 2015).

35. The Division of Vehicles is responsible for issuing drivers’ licenses to eligible Kan-

sas residents and for reissuing drivers’ licenses to spouses who change their last names as part of

the marriage licensing process. Kan. Stat. Ann. §§ 8-235b (issuance of new licenses) & 8-246(a)

(replacement of drivers’ licenses “if a new name is acquired”).

36. When the name of a Kansas driver’s “licensee is changed by marriage or otherwise,

such person, within 10 days thereafter, shall notify the division [of vehicles] in writing of such


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person’s . . . former and new names and of the number of any driver’s license then held by such

person.” Kan. Stat. Ann. § 8-248.

37. “[I]f a new name is acquired, the person to whom such driver’s license was issued

may obtain a replacement upon: (1) Furnishing satisfactory proof of the . . . name change to the

division, including an affidavit stating the circumstances of the . . . name change; (2) payment of

a fee of $8; and (3) furnishing proof of the person’s identity as provided in subsection (b).” Kan.

Stat. Ann. § 8-246(a). Subsection (b) lists numerous documents that the Division of Vehicles

must accept as proof of identity including a “marriage license.” Kan. Stat. Ann. § 8-248(b)(6).

38.

Kansas law provides that “[a]t the time of marriage, a person may designate a newlegal name, by which such person shall subsequently be known.” Kan. Stat. Ann. § 23-2506(a).

Such new legal name “shall be recorded on the marriage license issued to such person,” and the

name change “shall be effective upon the endorsement of the person’s marriage license with the

certificate of marriage of the person who performed the marriage ceremony[.]” Kan. Stat. Ann.

§ 23-2506(b & c). “A certified copy of a person’s marriage license . . . shall constitute proof of

identity for the purposes of issuance of any Kansas driver’s license or nondriver’s identification

card.” Kan. Stat. Ann. § 23-2506(d).

39. On her marriage license, as permitted by Illinois law, Plaintiff Carrie L. Fowler

changed her last name from Fowler to Braun. Second Fowler Decl., ¶ 5.

40. On their Kansas marriage license, Plaintiffs Bohnenblust and Hickman designated

new legal last names for themselves. Second Bohnenblust Decl., ¶ 6 & Exhibit B (certified copy

of Kansas Marriage License No. 14MA661). Specifically, Plaintiff Bohnenblust designated Pot-

troff (her last name at birth) as her new last name, and Plaintiff Hickman designated Spain (her

last name at birth) as her new last name. Id.


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41. After changing their names as part of the marriage licensing process, Plaintiffs

Fowler, Bohnenblust, and Hickman were able to change their last names on their records at the

Social Security Administration and to obtain new Social Security cards listing their new last

names. Second Fowler Decl., ¶ 6; Second Bohnenblust Decl., ¶ 7.

42. After their marriages, Plaintiffs Fowler, Bohnenblust, and Hickman went to drivers’

license offices operated under the supervision of the Kansas Division of Vehicles and attempted

to obtain new driver’s licenses in their new last names. Second Fowler Decl., ¶ 7; Second

Bohnenblust Decl., ¶ 8.

43.

The Division of Vehicles refused to issue Plaintiffs Fowler, Bohnenblust, andHickman drivers’ licenses in their new last names. Id .

44. Clerks working at the driver’s license offices told Plaintiffs Fowler, Bohnenblust,

and Hickman that, because their marriages are not recognized in Kansas, the Division of Vehi-

cles would not issue them new drivers’ licenses in their new married last names. Id .

45. Plaintiff Fowler called the Division of Vehicles’ office in Lawrence to see if she

would be able to get a new license in her married name. The staff person who answered the tele-

phone stated that, even though some district court clerks were issuing marriage licenses to same-

sex couples, the Division of Vehicles does not recognize same-sex marriages. Second Fowler

Decl., ¶ 8.

46. Plaintiff Fowler then called the Division of Vehicles’ Driver’s Licensing telephone

number in Topeka, Kansas, and was told that the Division had been instructed to follow the Kan-

sas Constitution and not to recognize same-sex marriages, including the marriage of Plaintiffs

Fowler and Braun. Id .


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Recognition Claims Against Defendant Michael Related to the State Employee Health InsurancePlan

47. The State Employee Health Plan (“SEHP”) provides health care benefits for eligible

state employees, their spouses, and their other eligible dependents. Kan. Stat. Ann. § 75-6501;

K.A.R. § 108-1-1(b)(2) (state officers & employees eligible), 33 Kan. Reg. 1284 (Dec. 18,

2014), available at

http://www.kssos.org/pubs/register/2014/Vol_33_No_51_December_18_2014_p_1269-

1296.pdf (last checked Feb. 10, 2015).

48. Defendant Mike Michael is the Director of the SEHP. See KDHE website at

http://www.kdheks.gov/hcf/sehp/healthcare_commission.html (last checked Feb. 10, 2015).49. The SEHP’s eligibility regulation provides that “[a]ny 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 partic-

ipant’s lawful wife or husband, as recognized by Kansas law and subject to documentation re-

quirements of the commission or its designee[.]” K.A.R. § 108-1-1(g)(1).

50. The SEHP provides participants with a booklet that explains the benefits and cover-

age of the Plan. Second Peters Decl., ¶ 6. The booklet for the current Plan year is entitled “State

Employee Benefits Guidebook – Plan Year 2015,” and it was issued in October 2014. Id . In a

section entitled “Other Eligible Individuals Under the SEHP,” the Guidebook explains that the

SEHP provides dependent coverage for “[y]our lawful wife or husband, referred to as ‘spouse’

throughout the rest of this guidebook. (Same gender marriages are not recognized under Kansas

Law).” Second Peters’ Decl., ¶ 6 (copy of page 9 of the Guidebook, attached to Second Peters

Declaration as Exhibit 1).


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51. Plaintiffs Peters and Bohnenblust are employed by state universities in Kansas and

are thus employees of the State of Kansas. Second Peters Decl., ¶ 5; Second Bohnenblust Decl.,

¶ 9.

52. Plaintiffs Peters and Bohnenblust are eligible for health care benefits provided

through the SEHP because they meet the definition of “primary participants” within the meaning

of K.A.R. § 108-1-1(b)(2). Id .

53. Plaintiffs Peters and Bohnenblust both participate in the SEHP for their health in-

surance coverage. Id.

54.

On November 16, 2014, Plaintiff Peters went to the human resources department atthe University of Kansas and asked to add Plaintiff Mohrman to his health insurance policy as

the primary participant’s lawful husband, as permitted by K.A.R. § 108-1-1(g)(1)(A). Second

Peters Decl., ¶ 7.

55. The human resources department at the University of Kansas declined the request

of Plaintiff Peters to add his lawful husband, Plaintiff Mohrman, as an eligible dependent under

the SEHP. Id ., ¶ 8.

56. On November 22, 2014, Plaintiff Bohnenblust sent an e-mail to the human re-

sources office at her employer, Kansas State University, in which she requested to add Plaintiff

Hickman to her health insurance policy as the primary participant’s lawful wife. Second

Bohnenblust Decl., ¶ 10.

57. On November 24, 2014, the human resources department at Kansas State University

declined the request of Plaintiff Bohnenblust to add her lawful wife, Plaintiff Hickman, as an eli-

gible dependent under the SEHP. Id .


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require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Id ., 477 U.S. at 251-252.

B. Under binding Tenth Circuit precedent, the Kansas laws that ban same-sex marriage

are unconstitutional, and Plaintiffs are entitled to summary judgment.This Court should grant summary judgment to Plaintiffs because, viewing the uncontro-

verted evidence in the light most favorable to Defendants, there is no genuine issue of material

fact and Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Lenox

MacLaren Surgical Corp. v. Medtronic, Inc ., 762 F. 3d 1114, 1118 (10th Cir. 2014).

Under binding Tenth Circuit precedent: “A state may not deny the issuance of a marriage

license to two persons, or refuse to recognize their marriage, based solely upon the sex of the

persons in the marriage union.” Kitchen v. Herbert , 755 F.3d 1193, 1199 (10th Cir.), cert. de-

nied , 135 S. Ct. 265 (2014). In addition, the Tenth Circuit squarely held in Kitchen that the fun-

damental right to marry necessarily includes the right to have one’s marriage recognized. Id. at

1213.

The precedent in Kitchen dictates the result in this case. As this Court previously ruled,

“Kansas’ same-sex marriage ban does not differ in any meaningful respect from the Utah . . .

laws the Tenth Circuit found unconstitutional,” and “[b]ecause Tenth Circuit precedent is bind-

ing on this Court, Kitchen . . . dictate[s] the result here.” Memorandum and Order, 2014 U.S.

Dist. LEXIS 157093 (D. Kan. Nov. 4, 2014), Doc. 29, p. 33. See United States v. Spedalieri , 910

F.2d 707, 709 n.2 (10thCir. 1990) (“A district court must follow the precedent of this circuit”);

Phillips v. Moore , 164 F. Supp. 2d 1245, 1258 (D. Kan. 2001) (“The [district] court, of course, is

bound by circuit precedent”) (citing Spedalieri) . The Court should, therefore, grant Plaintiffs’

motion for summary judgment on the legal question of whether the Kansas laws prohibiting offi-

cials from issuing marriage licenses to same-sex couples and from recognizing same-sex mar-


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riages for any legal purpose violate the Due Process and Equal Protection Clauses of the Four-

teenth Amendment.

C. There are no disputed material issues of fact that preclude the entry of summary

judgment.There are no disputed material issues of fact that preclude the entry of summary judgment

in this case. There is no dispute that:

The License Plaintiffs meet all the relevant requirements to marry under Kansas

law. See Statement of Undisputed Material Facts (hereafter “SUMF”), ¶12.

When Plaintiffs filed this suit, Defendants Hamilton and Lumbreras were refusing

to issue marriage licenses to same-sex couples because of the Kansas laws that

ban same-sex marriage. SUMF, ¶¶ 14 & 16.

The Administrative Orders issued by the chief judges of the Douglas County and

Sedgwick County District Courts, which authorize Defendants Hamilton and

Lumbreras to issue marriage licenses to same-sex couples, were issued to comply

with this Court’s preliminary injunction, which compelled Defendant CourtClerks to begin issuing marriage licenses to same-sex couples. See Douglas Co.

Dist. Ct. Admin. Ord. 14-17, attached to Aff. of Douglas Hamilton, Doc. 59-1;

Sedgwick Co. Dist. Ct. Admin. Ord. 14-03, Doc. 59-3. The Douglas County Or-

der expressly states that, “[i]n compliance with this preliminary injunction this

court rescinds Administrative Order 14-17 and instructs the Clerk of the District

Court to issue marriage licenses to all qualified applicants without regard to the

gender of the applicant.” Doc. 59-1, p. 3.

Defendant Mosier has statutory duties with respect to registering and indexing

marriage licenses filed with KDHE and providing certified copies of such records


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upon request. SUMF ¶ 7. Defendant Mosier also has a statutory duty to provide

district courts with the necessary forms to carry out the marriage licensing pro-

cesss. Id . Defendant Mosier is performing those duties with respect to same-sex

marriage licenses pursuant to the terms of the preliminary injunction, but absent

an injunction Defendant Mosier would be required to follow the Kansas laws ban-

ning same-sex marriage. SUMF, ¶ 17.

Plaintiffs Peters and Mohrman, Fowler and Braun, and Bohnenblust and Hickman

received legally valid marriage licenses and solemnized their marriages in accord-

ance with all legal requirements. SUMF, ¶¶ 22-24. Defendant Jordan, through his official duties, is enforcing Kansas’s marriage bans

by not permitting the Recognition Plaintiffs – or any other married same-sex cou-

ples – to file joint tax returns pursuant to Kan. Stat. Ann. § 79-32,115. SUMF,

¶¶ 25-32.

Defendants Jordan and Kaspar, through their official duties, are enforcing Kan-

sas’s marriage bans by not issuing driver’s licenses with changed last names to

Plaintiffs Fowler, Bohnenblust, and Hickman – or any other married same sex

couples – based on a certified copy of their marriage licenses pursuant to Kan.

Stat. Ann. § 23-2506. SUMF, ¶¶ 33-46.

Defendant Michael, through his official duties, is enforcing Kansas’s marriage

bans by not allowing Plaintiffs Peters and Bohnenblust – or any other person with

a same-sex spouse – to enroll their spouses as eligible dependents pursuant to

K.A.R. § 108-1-1(g)(1)(A). SUMF, ¶¶ 47-58.


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C. Plaintiffs are entitled to a declaratory judgment and a permanent injunction.

Declaratory judgment is a remedy available under both the Declaratory Judgment Act, 28

U.S.C. §§ 2201-2202, and Fed. R. Civ. P. 57. The Tenth Circuit has instructed trial courts to

weigh two key questions when asked to hear a declaratory judgment action: “Will a declaration

of rights, under the circumstances, serve to clarify or settle legal relations in issue? Will it

terminate or afford relief from the uncertainty giving rise to the proceeding? If an affirmative

answer can be had to both questions, the trial court should hear the case; if not, it should decline

to do so.” State Farm Fire & Cas. Co. v. Mhoon , 31 F. 3d 979, 983 (10th Cir. 1994).

In this case, a declaratory judgment will both “settle the legal relations in issue” and“afford relief from the uncertainty giving rise to the proceeding.” Specifically, a declaratory

judgment would put to rest the on-going refusal of some Kansas district courts to issue marriage

licenses to same-sex couples and of State officials – including the Recognition Defendants – to

refuse to recognize same-sex marriages in a wide variety of contexts. 3 Thus, Plaintiffs

respectfully request that the Court enter a judgment declaring that Article 15, § 16 of the Kansas

Constitution and Kan. Stat. Ann. §§ 23-2501 and 23-2508 violate the Due Process and Equal

Protection Clauses of the Fourteenth Amendments and are unconstitutional and unenforceable on

their face.

3 Erin Matthews, “First same-sex marriage license issued in Saline County,” Salina Journal , Feb.

10, 2015, available on-line at http://www.salina.com/news/local/first-same-sex-marriage-license-issued-in-saline-county/article_d01974c3-159f-5d15-8336-fde4b0af7522.html (last checked Feb.13, 2015) (reporting that thirty-nine county district courts in Kansas continue to refuse to issuemarriage licenses to same-sex couples); “Kansas agencies not recognizing gay marriages yet,”

Lawrence Journal-World , Nov. 20, 2014, available on-line at http://www2.ljworld.com/news/2014/nov/20/kansas-agencies-not-recognizing-gay-marriages-yet/ (last checked Feb. 13, 2015)(“Gov. Brownback’s administration will not make any policy changes to recognize same-sexcouples while it defends the Kansas gay marriage ban against a federal lawsuit”).


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“According to well-established principles of equity, a plaintiff seeking a permanent

injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must

demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such

as monetary damages, are inadequate to compensate for that injury; (3) that, considering the

balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v.

MercExchange , L.L.C. , 547 U.S. 388, 391 (2006). See also Fisher v. Oklahoma Health Care

Authority, 335 F.3d 1175, 1180 (10th Cir. 2003). In granting Plaintiffs’ motion for a preliminary

injunction on the marriage licensing claims, the Court found that Plaintiffs had met each of theserequirements. Memorandum and Order, 2014 U.S. Dist. LEXIS 157093 (D. Kan. Nov. 4, 2014),

Doc. 29, pp. 35-36.

Irreparable Injury and Inadequate Remedies . No award of money damages would com-

pensate for Plaintiffs’ injuries. The loss of a constitutional right “even for minimal periods of

time, unquestionably constitutes irreparable injury.” Elrod v. Burns , 427 U.S. 347, 373 (1976)

(plurality opinion); see also, Awad v. Ziriax , 670 F.3d 1111, 1131 (10th Cir. 2012) (“Further-

more, when an alleged constitutional right is involved, most courts hold that no further showing

of irreparable injury is necessary”) (citation omitted) . Here, without the Court’s declaratory re-

lief and permanent injunction, the Plaintiffs will suffer the disrespect, stigma, and uncertainty

that flows from the loss of their right to choose their marital partner, together with the daily bur-

dens they and their families have suffered for years, including, taken together, the loss of benefits

and rights conferred upon married different-sex couples by many state laws solely because Kan-

sas law bans same-sex marriage. Only a permanent injunction will remedy these ongoing consti-

tutional violations.


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Balance of Hardships . The balance of hardships tips clearly in favor of Plaintiffs. The

record confirms that the Kansas marriage license ban harms Plaintiffs by depriving them of the

right to marry through Kansas’s statutory marriage licensing process; but Defendant Mosier and

the Defendant District Court Clerks, who would simply issue and process more marriage licenses

if the requested injunction issued, would suffer no harm. Moreover, the Kansas marriage recog-

nition ban harms the Recognition Plaintiffs in specific and concrete ways, such as denying them

the right to change their names on drivers’ licenses, denying them the right to file their state in-

come tax returns as “married,” and denying them the right to add their husbands or wives as eli-

gible dependents for purposes of state employee health care benefits. Kansas statutes extendthese rights to different-sex married people as a matter of course, but the Kansas marriage ban

deprives same-sex married couples of these basic privileges. Granting a permanent injunction

against enforcement of these unconstitutional laws would have no effect on the Recognition De-

fendants, who would merely be required to process slightly different tax forms and some addi-

tional name changes and applications for dependent health care benefits. As this Court noted in

granting the preliminary injunction, “[o]n these facts, Tenth Circuit precedent requires the Court

to conclude the balance of harm analysis favors injunctive relief.” Memorandum and Order,

2014 U.S. Dist. LEXIS 157093 (D. Kan. Nov. 4, 2014), Doc. 29, p. 36.

The Public Interest . Finally, the public interest would be served by enjoining enforce-

ment of the Kansas marriage ban. Allowing same-sex couples to marry their same-sex partners

and requiring the recognition of those marriages would stabilize these same-sex families and di-

minish the harm caused by the Kansas laws that prohibit same-sex marriage. On the other hand,

allowing same-sex marriage and requiring government officials to recognize same-sex marriages

would cause no harm to either the marriages of or the benefits that flow to different-sex couples.


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Once again, as this Court noted previously, “the public interest favors protecting plaintiffs’ con-

stitutional rights by enjoining Kansas’ plainly unconstitutional provisions.” Id.

In short, the record supports entry of a declaratory judgment and a permanent injunction.

CONCLUSION

Plaintiffs have shown that the Kansas laws banning the issuance of marriage licenses to

same-sex couples and the laws prohibiting recognition of same-sex marriages are unconstitution-

al.

Accordingly, Plaintiffs respectfully request that the Court enter a declaratory judgment

that article 15, §16 of the Kansas Constitution and Kan. Stat. Ann. §§ 23-2501 and 23-2508 andany other sources of state law that permit or require Defendants to refuse recognition of the mar-

riages of same-sex couples whether performed in Kansas or elsewhere are unconstitutional in

violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Furthermore, Plaintiffs respectfully request that the Court issue a preliminary injunction:

(1) enjoining Defendants Susan Mosier, Douglas Hamilton, Bernie Lumbreras, Nick Jordan,

Lisa Kaspar, and Mike Michael, in their official capacities – as well as all officers, agents, serv-

ants, employees, attorneys, and other persons who are in active concert or participation with

them – from enforcing article 15, section 16 of the Kansas Constitution, Kansas Statutes Anno-

tated §§ 23-2501 and 23-2508, and any other sources of state law that permit or require Defend-

ants to refuse recognition of the marriages of same-sex couples whether performed in Kansas or

elsewhere, and

(2) requiring Defendants Susan Mosier, Douglas Hamilton, Bernie Lumbreras, Nick Jordan,

Lisa Kaspar, and Mike Michael, in their official capacities – as well as all officers, agents, serv-

ants, employees, attorneys, and other persons who are in active concert or participation with


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them – to treat same-sex married people the same as any other married persons, including but not

limited to:

(a) requiring Defendant Mosier in her official capacity – and all officers, agents, servants,

employees, attorneys, and other persons who are in active concert or participation with

her – to process marriage licenses issued to same-sex couples pursuant to the same re-

strictions and limitations applicable to different-sex couples’ freedom to marry and to

recognize marriages validly entered into by same-sex couples including Plaintiffs.

(b) requiring Defendants Hamilton and Lumbreras in their official capacities – and all offic-

ers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them – to permit issuance of marriage licenses to same-sex couples,

pursuant to the same restrictions and limitations applicable to different-sex couples’ free-

dom to marry, and to recognize marriages validly entered into by same-sex couples in-

cluding Plaintiffs.

(c) requiring Defendant Jordan, in his official capacity – and all officers, agents, servants,


him – to recognize marriages validly entered into in Kansas and elsewhere by same-sex

couples including Plaintiffs for purposes of filing individual state income tax returns in a

“married” status;

(d) requiring Defendants Jordan and Kasper in their official capacities – and all officers,

agents, servants, employees, attorneys, and other persons who are in active concert or

participation with them – to recognize marriages validly entered into in Kansas and else-

where by same-sex couples including Plaintiffs for purposes of issuing new drivers’ li-


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censes to married same-sex spouses who change their names as part of the marriage li-

censure process; and

(e) requiring Defendant Michael in his official capacity – and all officers, agents, servants,


him – to recognize marriages validly entered into in Kansas and elsewhere by same-sex

couples including Plaintiffs for purposes of allowing employees covered by the SEHP to

add their same-sex spouses as dependents covered by the SEHP.

Respectfully submitted,

/s/ Stephen Douglas BonneyStephen Douglas Bonney, KS Bar No. 12322ACLU Foundation of Kansas3601 Main StreetKansas City, MO 64111Tel. (816) 994-3311Fax: (816) [email protected]

Mark P. Johnson, KS Bar #22289Dentons US, LLP4520 Main StreetSuite 1100Kansas City, MO 64111816/460-2400816/531-7545 (fax)[email protected]

Joshua A. Block [motion for pro hac vice to befiled]AMERICAN CIVIL LIBERTIESUNION FOUNDATION125 Broad Street, 18th Floor

New York, NY 10004(212) 549-2593

[email protected]

ATTORNEYS FOR PLAINTIFFS


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Certificate of Service

I certify that, on February 13, 2015, the foregoing document was served on counsel for alldefendants per the Court’s ECF system.

/s/ Stephen Douglas Bonney


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Department of Revenue

Policy & Research915 SW Harrison StTopeka KS 66612-1588Nick Jordan, SecretaryRichard Cram, Director

Phone: 785-296-3081FAX: 785-296-7928www.ksrevenue.org

Sam Brownback, Governor

NOTICE 13-18

G UIDANCE FOR SAME -SEX C OUPLES (October 4, 2013)

Federal Tax Treatment

For federal tax purposes, Rev. Rul. 2013-17 provides that the Internal Revenue Service(IRS) will recognize a marriage of same-sex individuals that was validly entered into in a statewhose laws authorize such a union. This applies even if the couple is domiciled in a state that

does not recognize the validity of same-sex marriages.

As a result, for tax year 2013 and going forward, same-sex spouses generally must file theirfederal income tax returns using a filing status of married filing jointly or married filingseparately.

Kansas Income Tax Treatment

Kansas only recognizes marriages between one woman and one man. (See Article 15,Section 16, of the Kansas Constitution.) Kansas Statutes Annotated (K.S.A. 79-32,115) providethat a husband and wife shall file a joint or married filing separate return for income tax

purposes. Individuals of the same sex cannot file a Kansas income tax return using a tax statusof married filing jointly or married filing separately.

In the case of same-sex individuals who are considered married for federal income tax purposes:

As has been the practice since the initiation of the Kansas income tax, each individualmust file a separate Kansas income tax return on Form K-40, using the filing status ofsingle or, if qualified, head of household.

Same-sex individuals who file a joint federal income tax return must complete a

worksheet that will be available at www.ksrevenue.org to show the amount of incomeas reported on the joint federal return that is allocable to each individual, anddetermines the federal adjusted gross income to be used by each individual forKansas tax purposes.

The above guidance applies to returns filed for tax year 2013 and going forward.

Plaintiffs' Exhibit A

Case 2:14-cv-02518-DDC-TJJ Document 86-1 Filed 02/13/15 Page 1 of 2

http://www.ksrevenue.org/pdf/iiallocation13.pdfhttp://www.ksrevenue.org/pdf/iiallocation13.pdfhttp://www.ksrevenue.org/pdf/iiallocation13.pdfhttp://www.ksrevenue.org/pdf/iiallocation13.pdf

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2

Although Rev. Rul. 2013-17 provides that under certain circumstances amended returns for prior tax years may be filed for federal tax purposes to change the filing status to married filing jointly or married filing separately, no such amended returns may be filed for Kansas to changethe filing status.

Returns can be filed electronically through www.webtax.org , or, if it is available, throughcommercial tax preparation software. Returns can be filed on paper, although the Department ofRevenue prefers that returns be filed electronically.

Taxpayer Assistance

Additional copies of this notice, forms or publications are available from our web site,www.ksrevenue.org . If you have questions about income tax, please contact:

Taxpayer Assistance CenterKansas Department of Revenue

915 SW Harrison St., 1st FloorTopeka, KS 66612-1588

Phone: 785-368-8222Hearing Impaired TTY: 785-296-6461

Fax: 785-291-3614

Plaintiffs' Exhibit A


http://www.webtax.org/http://www.webtax.org/http://www.webtax.org/

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KAIL MARIE, et al. ,

Plaintiffs,

v.

SUSAN MOSIER, M.D., in his official capacityas Secretary of the Kansas Department ofHealth and Environment, et al. ,

Defendants.

))

)))))))))

Case No. 14-cv-2518

SECOND DECLARATION OF JAMES E. PETERS

1. I, James E. Peters, am one of the Plaintiffs in this action. I have personal

knowledge of the matters stated in this Declaration and could and would competently testify to

these facts.

2. I currently live in Lawrence, Kansas, which is in Douglas County. I live there

with my husband and co-plaintiff, Gary A. Mohrman, with whom I have been in a committed,

loving relationship for more than thirty-four years.

3. Gary Mohrman and I obtained a marriage license in Dubuque County, Iowa, and

our marriage was solemnized in a public ceremony performed in Dubuque, Iowa, on July 31,

2010.

4. Except for the fact that Gary and I are both men, we meet all of the qualifications

to have our marriage recognized in Kansas.

5. I am currently employed by the University of Kansas in Lawrence, Kansas, as the

Director of the Osher Lifelong Learning Institute. Among other employee benefits that come

with my job, I am eligible for health insurance provided through the Kansas State Employee

Health Plan (“SEHP”) because I meet the definition of a “primary participant” within the


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State Employee Health Plan

State Employee Benefits Guidebook – Plan Year 2015 (New - 10/14)Page 9

OTHER ELIGIBLE INDIVIDUALS UNDER THE SEHP

In addition to covering yourself, you may also elect coverage for other eligible individuals of your family. Theseeligible individuals include:

1. Your lawful wife or husband, referred to as “spouse” throughout the rest of this guidebook (Samegender marriages are not recognized under Kansas Law).

2. Any of your eligible dependent child(ren) also referred to as “dependent(s)” throughout the rest ofthis guidebook.

If you divorce, coverage for your former spouse and stepchild(ren) ends on the last day of the month of thedate your divorce is filed. If the date of your divorce is the first day of the month, coverage for your formerspouse and stepchild(ren) ends on the first day of that month.

Other Eligible Individuals Important Information:

A. If you are eligible to enroll as a primary member in the SEHP, you are not eligible to be enrolledas spouse or dependent of another primary member in the SEHP.

B. An eligible dependent that is enrolled by one primary member is not eligible to be enrolled as adependent by another primary member.

C. “Other e ligible individual” excludes any individual who is not a citizen or natio nal of the UnitedStates, unless the individual is a resident of the United States or a country contiguous to theUnited States, is a member of a primary member’s household, and resides with the primarymember for more than six months of the calendar year. The dependent shall be considered toreside with the primary member even when the dependent is temporarily absent due to specialcircumstances, including illness, education, business, vacation, and military service.

D. “Permanent and total disability” mean s that an individual is unable to engage in any substantialgainful activity by reason of any medically determinable physical or mental impairment that canbe expected to result in death or has lasted or can be expected to last for a continuous period of

at least 12 months. An individual shall not be considered to have permanent and total disabilityunless the individual furnishes proof of the permanent and total disability in the form andmanner, and at the times, the SEHP may require.

E. The word "child" means:1) Your natural son or daughter2) Your lawfully adopted son or daughter. Lawfully adopted will include those instances

in which a primary member has filed a petition for adoption with the court, has aplacement agreement for adoption or has been granted legal custody.

3) Your stepchild. If the natural or adoptive parent of the stepchild is divorced from you,the child no longer qualifies as your stepchild, and is no longer eligible for coverage.

4) A child of whom you as the primary member has legal custody. Legal custody ends

once the child reaches the age of 18.5) Your grandchild, if at least one of the following conditions is met:I. You have legal custody of your grandchild or have lawfully adopted your

grandchildII. The grandchild lives in the your home and is the child of your covered eligible

dependent child and you provide more than 50% of the support of yourgrandchild; or

III. The grandchild is the child of your covered eligible dependent child and isconsidered to reside with you even when your grandchild or your eligibledependent child is temporarily absent due to special circumstances including

Peters Declaration, Exhibit 1


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KANSAS CITY DIVISION


Plaintiffs,

v.

ROBERT MOSER, M.D., in his officialcapacity as Secretary of the Kansas Departmentof Health and Environment, et al. ,

Defendants.

)

))))))))))

Case No. 14-cv-2518

SECOND DECLARATION OF DARCI JO BOHNENBLUST1. I, Darci Jo Bohnenblust, am one of the Plaintiffs in this action. I have personal


these facts.

2. I currently live in the City of Riley, Kansas, which is in Riley County. I live there

with my wife and co-plaintiff, Joleen M. Hickman, with whom I have been in a committed,

loving relationship for more than nineteen years.

3. On October 9, 2014, Joleen and I applied for a marriage license from the Riley

County District Court, but that application was denied in an Administrative Order signed by

Chief Judge Meryl D. Wilson.

4. On November 13, 2014, Joleen and I obtained a marriage license from the Riley

County District Court, and our marriage was solemnized in a public ceremony performed in Riley

County, Kansas. We married one day after the District Court’s preliminary injunction in this case

went into effect.


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5. Except for the fact that Joleen and I are both women, we meet all of the

qualifications for having our marriage recognized in Kansas.

6. On our marriage license, as permitted by Kansas law, I changed my last name

from Bohnenblust to Pottroff (my last name at birth), and Joleen changed her last name from

Hickman to Spain (her last name at birth).

7. After getting married on November 13, 2014, Joleen and I were able to change

our last names on our records at the Social Security Administration and to obtain new Social

Security cards with our new last names.

8.

After getting married, Joleen and I went to a local office of the Kansas Division ofVehicles, a division of the Kansas Department of Revenue, presented a certified copy of our

marriage license issued by the Riley County District Court, and requested that the Kansas

Division of Vehicles issue new drivers’ licenses to each of us in our new last names as shown on

the certified copy of our marriage license. The Kansas Division of Vehicles refused to issue us

new drivers’ licenses in our new last names as shown on the certified copy of our marriage

license. The clerk with whom we interacted stated that the State of Kansas does not recognize

same-sex marriages.

9. I am employed by Kansas State University in Manhattan, Kansas. Among other

employee benefits that come with my job, I am eligible for health insurance provided through the

Kansas State Employees Health Plan (“SEHP”). I am a participant in the SEHP, which provides

for dependent coverage including coverage of a “spouse.” But the Plan specifically excludes

same-sex spouses from eligibility for dependent spousal health insurance benefits.

10. On November 22, 2014, I sent an e-mail to Human Resources at Kansas State

University requesting to add my spouse, Plaintiff Hickman, as a dependent on the health


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insurance policy that covers me. In an e-mail dated November 24, 2013, a Human Resources

representative told me that she could not add my spouse as a dependent on my health care

benefits because Defendant Michael had advised Kansas State University that “same gender

couples will remain ineligible” for spousal health care benefits under the SEHP because Kansas

law does not recognize same-sex marriages. For that reason, I was unable to add my wife,

Plaintiff Hickman, as a dependent spouse under the SEHP.

I declare under penalty of perjury that the foregoing statements, including all statements

in this Declaration, are true and correct.

Executed on February 13, 2014. /s/ Darci Jo Bohnenblust ________Darci Jo Bohnenblust


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Plaintiffs,

v.

ROBERT MOSER, M.D., in his officialcapacity as Secretary of the Kansas Departmentof Health and Environment, et al. ,

Defendants.

))

)))))))))

Case No. 14-cv-2518

SECOND DECLARATION OF CARRIE L. FOWLER (BRAUN)

1. I, Carrie L. Fowler (Braun), am one of the Plaintiffs in this action. I have

personal knowledge of the matters stated in this Declaration and could and would competently

testify to these facts.

2. I currently live in McLouth, Kansas, which is in Jefferson County. I live there

with my wife and co-plaintiff, Sarah C. Braun, with whom I have been in a committed, loving

relationship for more than two years.

3. Sarah and I obtained a marriage license in Cook County, Illinois, and our marriage

was solemnized in a public ceremony performed in Chicago, Illinois, on June 7, 2014.

4. Except for the fact that Sarah and I are both women, we meet all of the

qualifications to have our marriage recognized in Kansas.

5. On our marriage license, as permitted by Illinois law, I changed my last name

from Fowler to Braun.

6. After getting married in Illinois on June 7, 2014, I was able to change my last

name from Fowler to Braun on my records at the Social Security Administration and to obtain a

new Social Security card listing my last name as Braun.


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7. On June 25, 2014, Sarah and I went to the Division of Vehicles’ drivers’ license

office in Lawrence, Kansas, to attempt to obtain a new driver’s license for me in my married

name of Braun. The Division of Vehicles refused to issue me a new license in my married name.

After waiting for over an hour, a clerk told us that our marriage was not recognized under Kansas

law.

8. On November 13, 2014, after district court clerks in Kansas began issuing

marriage licenses to same-sex couples, I called the Division of Vehicles office in Lawrence to

see if I would be able to get a new license in my married name, but the staff person who

answered the telephone stated that, even though some district court clerks were issuing marriagelicenses to same-sex couples, the Division of Vehicles still does not recognize same-sex

marriages. I then called the telephone number for the Division of Vehicles’ Driver’s Licensing

office in Topeka, Kansas, and was told that the Division of Vehicles had been instructed to

follow the Kansas Constitution and not to recognize same-sex marriages, including my marriage

to Plaintiff Braun.

I declare under penalty of perjury that the foregoing statements, including all statements


Executed on February 13, 2015. /s/ Carrie L. Fowler (Braun)____Carrie L. Fowler (Braun)


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and correct. The clerk then gave me the worksheet to take home and told me not to bring it back

before Monday, October 13, after the statutory three day waiting period required for the issuance

of a marriage license in Kansas.

6. On October 16, 2014, Michelle and I returned to the office of the Clerk of the

Douglas County District Court, were told that our application for a marriage license was denied,

and, were given a copy of Douglas County District Court Administrative Order 14-13.

7. Michelle and I intend to re-apply for a marriage license once this case has been

fully litigated to final judgment and any appeals have been exhausted.

I declare under penalty of perjury that the foregoing statements, including all statementsin this Declaration, are true and correct.

Executed on February 13, 2015. /s/ Kail Marie ______________Kail Marie


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Plaintiffs,

v.

SUSAN MOSIER, M.D., in her officialcapacity as Secretary of the Kansas Departmentof Health and Environment, et al. ,

Defendants.

))

)))))))))

Case No. 14-cv-2518

SECOND DECLARATION OF MICHELLE L. BROWN

1. I, Michelle L. Brown, am one of the Plaintiffs in this action. I have personal


these facts.

2. I currently live in Lecompton, Kansas, which is in Douglas County. I live there

with my life partner, Kail Marie, with whom I have been in a committed relationship for more

than twenty-one years.

3. I want to marry Kail, but my desire to marry has been denied because the laws of

the State of Kansas prohibit us and other same-sex couples from marrying.

4. Except for the fact that Kail and I are both women, we meet all of the

qualifications for marriage in Kansas. Specifically, we are both over the age of 18, we are not

related by blood, and neither of us is currently married to another person.

5. On October 16, 2014, Kail and I returned to the office of the Clerk of the Douglas

County District Court, were told that our application for a marriage license was denied, and,

were given a copy of Douglas County District Court Administrative Order 14-13.


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Plaintiffs,

v.


Defendants.

))

)))))))))

Case No. 14-cv-2518

SECOND DECLARATION OF KERRY WILKS

1. I, Kerry Wilks, Ph.D., am one of the Plaintiffs in this action. I have personal


these facts.

2. I currently live in Wichita, Kansas, which is in Sedgwick County. I live there

with my life partner, Donna DiTrani, with whom I have been in a committed relationship for

almost five years.

3. I want to marry Donna, but my desire to marry has been denied because the laws

of the State of Kansas prohibit us and other same-sex couples from marrying.

4. Except for the fact that Donna and I are both women, we meet all of the



5. On October 9, 2014, Donna and I appeared in person at the office of the Clerk of

the Sedgwick County District Court with the express purpose of applying for a marriage license

so that we could get married. A deputy clerk asked us for our names and other pertinent

information and filled out an application for a marriage license for us, which signed under oath


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before a deputy clerk. We then gave the deputy clerk the fully executed application for a

marriage license. The clerk indicated that we should sit down and after approximately two

minutes, a new deputy clerk called us forward and – reading from a prepared statement –

informed us that our application for a marriage license was denied because same-sex marriages

violate provisions of the Kansas Constitution and that the office of the District Court Clerk for

the 18 th Judicial District will not issue marriage licenses to same-sex couples “until the Supreme

Court otherwise rules differently.”

6. Donna and I intend to re-apply for a marriage license once this case has been fully

litigated to final judgment and any appeals have been exhausted.I declare under penalty of perjury that the foregoing statements, including all statements


Executed on February 13, 2015. /s/ Kerry Wilks, Ph.D._______Kerry Wilks, Ph.D.


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Plaintiffs,

v.


Defendants.

))

)))))))))

Case No. 14-cv-2518

SECOND DECLARATION OF DONNA DITRANI

1. I, Donna DiTrani, am one of the Plaintiffs in this action. I have personal


these facts.

2. I currently live in Wichita, Kansas, which is in Sedgwick County. I live there

with my life partner, Kerry Wilks, with whom I have been in a committed relationship for five

years.

3. I want to marry Kerry, but my desire to marry has been denied because the laws

of the State of Kansas prohibit us and other same-sex couples from marrying.

4. Except for the fact that Kerry and I are both women, we meet all of the



5. On October 9, 2014, Kerry and I appeared in person at the office of the Clerk of

the Sedgwick County District Court to apply for a marriage license so that we could get married.

A deputy clerk filled out the application form and we signed it under oath before a deputy clerk.

At that point, the deputy clerk – reading from a prepared statement – told us that our application


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2:14-cv-02518 #86

Documents

Transcript of 2:14-cv-02518 #86