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Case 2:14-cv-02518-DDC Document 119 Filed 05/22/15 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF KANSAS
KAIL MARIE and MICHELLE L. BROWN,
and KERRY WILKS, Ph.D., and DONNA
DITRANI, JAMES E. PETERS and GARY A.
MOHRMAN; CARRIE L. FOWLER and
SARAH C. BRAUN; and DARCI JO
BOHNENBLUST and JOLEEN M.
HICKMAN,
Plaintiffs,
v.

)
)
)
)
)
)
)
) Case No. 14-CV-2518-DDC
)
)
SUSAN MOSIER, M.D., in her official capacity
)
as Secretary of the Kansas Department of
)
Health and Environment and
)
DOUGLAS A. HAMILTON, in his official
)
Capacity as Clerk of the District Court for the 7th )
Judicial District (Douglas county), and
)
BERNIE LUMBRERAS, in her official capacity
)
as Clerk of the District Court for the 18th
)
Judicial District (Sedgwick County),
)
NICK JORDAN, in his official capacity as
)
Secretary of the Kansas Department of Revenue, )
LISA KASPAR, in her official capacity as Director )
of the Kansas Department of Revenues Division )
of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee
)
Health Plan,
)
Defendants.
)
_________________________________________ )

PRETRIAL ORDER
A pretrial conference was conducted in this case on May 7, 2015, by U.S.
Magistrate Judge Teresa J. James. The plaintiffs, Kail Marie, Michelle L. Brown, Kerry
Wilks, Ph.D., Donna DiTrani, James E. Peters, Gary A. Mohrman, Carrie L. Fowler,
Sarah C. Braun, Darci Jo Bohnenblust and Joleen M. Hickman, appeared through
counsel, Stephen D. Bonney and Samantha J. Wenger. The defendants, Susan Mosier,
M.D., in her official capacity as Secretary of the Kansas Department of Health and
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Environment, 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, appeared through counsel, Steve R. Fabert, Assistant
Attorney General, and Douglas A. Hamilton, in his official capacity as Clerk of the
District Court for the 7th Judicial District (Douglas County, Kansas), and Bernie
Lumbreras, in her official capacity as Clerk of the District Court for the 18th Judicial
District (Sedgwick County, Kansas), appeared through counsel, M.J. Willoughby,
Assistant Attorney General.
This pretrial order supersedes all pleadings and controls the subsequent course of
this case. It will not be modified except by consent of the parties and the courts
approval, or by order of the court to prevent manifest injustice. Fed. R. Civ. P. 16(d) &
(e); D. Kan. Rule 16.2(b).

1.

PRELIMINARY MATTERS.
a. Subject Matter Jurisdiction. Subject matter jurisdiction is invoked under

28 U.S.C. 1331, 1342(a) and 42 U.S.C. 1983 and is disputed. Defendants have
timely filed motions to dismiss the Amended Complaint for lack of subject matter
jurisdiction (Docs. 57, 58, 60, 79); to date, those motions have been briefed but not ruled
upon by the Court.
b. Personal Jurisdiction. The courts personal jurisdiction over the parties is
not disputed.
c. Venue. Venue in this court is not disputed.
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d. Governing Law. Subject to the courts determination of the law that


applies to the case, the parties believe and agree that the substantive issues in this case are
governed by the following law: Plaintiffs assert their claims under 42 U.S.C. 1983;
federal law regarding such claims applies. Defendants contend that because Plaintiffs
claims involve the traditional state matter of domestic relations and tax policy, state law
and public policy controls as to which marriages are given legal effect in Kansas (as also
provided in DOMA, 28 U.S.C. 1738C), and the rights and obligations afforded to
married persons within the State. Defendants contend that tax policy and administration
is a matter for state law and state policy. Defendants contend that while state law controls
the interpretation and application of the laws challenged by plaintiffs, federal law
controls the existence, nature, and application of the alleged constitutional right(s)
asserted by plaintiffs.

2.

STIPULATIONS.
a. The following facts are stipulated by reason of the F.R.C.P. 56 summary

judgment response and reply briefs:


Plaintiffs Statement of Facts:
4.

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

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
Environment (KDHE).
6.
The official duties of the Secretary of KDHE include directing and supervising
Kansass system of vital records.
7.
With respect to marriage licenses issued in the State of Kansas, the Secretary of
KDHE must: (a) supervise the registration of all marriage records issued in the State of Kansas,
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Kan. Stat. Ann. 23-2507; (b) furnish forms used throughout the State of Kansas for the marriage license process, Kan. Stat. Ann. 23-2509; and (c) maintain a publicly available vital
records 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
marriages 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.
9.
Defendant Bernie Lumbreras is the Clerk of the District Court for the 18th
Judicial District, also known as the Sedgwick County District Court, which sits in Wichita,
Kansas.
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
license application which was returned to the deputy clerk who then gave Plaintiff Marie a
marriage 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.
15.
On October 16, 2014, Plaintiffs Marie and Brown returned to the office of the
Clerk of the Douglas County District Court, were told that their application for a marriage license
was denied, and were given a copy of Administrative Order 14-13.
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 Emergency Motion for Stay of Preliminary Injunction. 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 Courts
preliminary injunction took effect.
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. Their
marriage was solemnized on July 31, 2010, in Dubuque, Iowa.
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. Their
marriage was solemnized on June 7, 2014 in Chicago, Illinois.
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. Their marriage was solemnized on November 13, 2014, in Riley County, Kansas.
25.

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


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(hereafter KDOR).
26.
As Secretary, Defendant Jordan is responsible for the direction and supervision
of the KDOR.
27.
The KDOR includes a Division of Taxation, the head of which is the Director of
Taxation, who is appointed by and works under the supervision of the Secretary of KDOR,
currently Defendant Jordan.
28.
Kan. Stat. Ann. 79-32,115 establishes rules pertaining to the filing of joint
and separate state income tax returns by husbands and wives. For instance, 79-32,115(c)
specifically provides that [i]f both husband and wife are residents, and if their federal taxable
income is determined on a joint federal return, their Kansas taxable income shall be reported
and taxed on the basis of a joint Kansas income tax return.
31.
Plaintiffs Peters and Mohrman filed their 2013 federal income tax returns as
married, filing separately.
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.
34.

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

48.

Defendant Mike Michael is the Director of the SEHP.

49.
The SEHPs 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 participants lawful wife or husband, as recognized by Kansas law and subject to
documentation requirements of the commission or its designee[.]
51.
Plaintiffs Peters and Bohnenblust are employed by state universities in Kansas and
are thus employees of the State of Kansas.
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).
53.
Plaintiffs Peters and Bohnenblust both participate in the SEHP for their health
insurance coverage.
Defendants Additional Material Facts:
1.

The original complaint was filed by four unmarried plaintiffs who sought to
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compel three named Kansas officials to issue marriage licenses to them. On November 26,
2014 a First Amended Complaint (Document 52) was filed naming six additional plaintiffs and
three additional defendants.
2.
All of the newly named plaintiffs allege that they are married persons.
Plaintiffs Peters and Mohrman allege that they were married in the state of Iowa in 2010.
Plaintiffs Fowler and Braun allege that they were married in the state of Illinois in 2014.
Plaintiffs Bohnenblust and Hickman allege that they were married in Kansas during November
of 2014.
3.
All of the claims asserted by the six new plaintiffs relate to one or another of
the newly added defendants, and they make no claims against the original three defendants.
4.
Plaintiffs Peters and Mohrman complain that Peters employer, the University
of Kansas, refused to add Mohrman to Peters state employee health insurance because
Mohrman does not meet the definition of a spouse under the eligibility rules governing the
health care plan.
5.
Plaintiffs Fowler and Braun complain that in November of 2014 Fowler was
unable to obtain a Kansas drivers license using the surname Braun because their Illinois
marriage is not recognized under Kansas law. Fowler and Braun state no other complaint.
6.
Plaintiffs Bohnenblust and Hickman complain that the Division of Vehicles
would not issue a new drivers license to each of them, restoring the surnames they had used
before entering into earlier marriages. The Amended Complaint does not state whether the
prior marriages were entered into in Kansas or some other state, nor does it state where the
legal proceedings occurred to dissolve the earlier marriages. Plaintiffs Bohnenblust and
Hickman also complain that Bohnenblusts employer, Kansas State University, refused to add
Hickman as a spouse on Bohnenblusts health insurance due to the limitation of spousal
coverage to opposite-sex spouses.
7.
In this lawsuit plaintiffs are not challenging the constitutionality of the federal
law that allows a state to give no effect to another states recognition of a same-sex marriage,
28 U.S.C. 1738C (1996).
8.
The marriage laws of Kansas have never permitted any person to marry any other
person without restriction.
13.
Plaintiffs Wilks and DiTrani participated in a civil commitment ceremony in
Wichita in June of 2012. Friends, family, and acquaintances were invited to attend the
ceremony.
15.
Plaintiffs Peters and Mohrman have resided together in Kansas since 2005. In
2010 they decided to travel to Iowa to enter into a marriage that would be lawful in that
state. They did not immediately demand that Kansas state agencies recognize their Iowa
marriage.
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17.
James Peters prepares his own taxes. He first investigated the possibility of
filing a return as a married person in 2013, which was the first year the IRS allowed same-sex
couples to file as married persons. Peters determined that he and Mohrman would minimize
their income tax burden if they filed separately. He mistakenly prepared duplicate federal
returns as single persons because he believed that Kansas law required it. For 2014 Peters and
Mohrman have again filed separately. There is no difference in the amount of state tax owed
whether they use federal forms for single persons or for married persons filing separately.
18.
Carrie Fowler was married to Bryan Fowler in Kansas in 1997 and was later
divorced from him in Atchison County. She has four minor children from that marriage.
19.
Carrie Fowler never obtained Illinois identification documents in the name of
Kerry Braun when she married plaintiff Sarah Braun in Illinois in June of 2014. None of the
paperwork related to the Illinois marriage states that she wanted to change her name to Carrie
Braun.
20.
Plaintiffs Fowler and Braun are Kansas residents at this time, but they plan to
relocate to Michigan in the future to be near Sarah Brauns family even though they know
that Michigan law will not recognize their marriage.
22.
Sarah Braun has no grievance other than her wish that Carrie Fowler be
allowed to change her name to Carrie Braun.
23.
Darci Bohnenblust was Darci Pottroff before she married Jerry Bohnenblust in
1982. The marriage lasted until 1995 and produced two children. She did not seek restoration of
her former name at the time of the divorce because of the children.
24.
Joleen Hickman was known as Joleen Spain until she married Philip Hickman
in 1977. The marriage produced one child before they were divorced in 1986. She also
retained her former name at the time of her Kansas divorce.
27.
Darci asked her employer, Kansas State University, to add Joleen to her
employment-related health insurance as a spouse, and the request was denied. Financially any
change from Joleens own employment related coverage would result in no savings. It would
result in Joleens medical bills being paid by the state of Kansas rather than a private
insurer. Darci is not interested in obtaining a court order that would fail to get the medical
bills paid by the State of Kansas. Joleen is satisfied with her personal policy at her place of
employment.
28.

In Kansas, district courts exist in each of the Kansas counties. K.S.A 20-301.

29.

A clerk of the district court is appointed in each county. K.S.A. 20-343 (2014

30.

Appointed clerks, their deputies and assistants have such powers, duties and

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functions as are prescribed by law, prescribed by rules of the supreme court or assigned by the
chief judge. K.S.A. 20-343 (2014 Supp.).
31.
The clerks of the district court shall do and perform all duties that may be
required of them by law or the rules and practice of the courts. . . . K.S.A. 20-3102.
32.

Clerks are expressly prohibited from giving legal advice. K.S.A. 20-3133.

33.
Kansas is a unified court system. K.S.A. 20-101, Kan. Const. Art. 3, 1 ([t]he
supreme court shall have general administrative authority over all courts in this state.);
K.S.A. 20-318 (2014 Supp.); K.S.A. 20-319 (2014 Supp.).
34.
In Kansas, the district courts are organized into 31 judicial districts. Kan. Const.,
Art. 3, 6; K.S.A. 4-202, et seq.
35.
Chief Judges are subject to supervision by the Kansas Supreme Court. K.S.A.
20-329 (2014 Supp.); Kansas Supreme Court Rule 107(a).
36.
Clerks of the District Court Hamilton and Lumbreras are Kansas Judicial Branch
officers, appointed by their respective Chief Judges and are Judicial Branch employees.
K.S.A. 20-343 (2014 Supp.); K.S.A. 20-345 (2014 Supp.); Kansas Supreme Court Rule
107(b)(2).
37.
The Kansas Constitution provides for three separate branches of state
government. Kan. Const., Arts. 1, 2, 3.
38.
Under Kansas law, only one party need appear to apply for a marriage license.
K.S.A. 23- 2505(a) (2014 Supp.).
39.
In Kansas, marriage licenses may be issued by judges or clerks. See, e.g.,
K.S.A. 23- 2505(a) (2014 Supp.).
42.
For example, for underage applicants, a judge may, after due investigation, give
consent and authorize a marriage. Clerks do not have that authority. K.S.A. 23-2505(c)
(2014 Supp.).
43.
The statutes do not require an applicant to produce a birth certificate as part
of the marriage license process. K.S.A. 23-2505 (2014 Supp.).
44.
An oath is administered to the marriage license applicant and the judge or
clerk are authorized to administer oaths for that purpose. K.S.A. 23-2505(d) (2014 Supp.).
45.
A person swearing falsely in the affidavit for marriage license is subject to a
misdemeanor criminal penalty and a fine not exceeding $500. K.S.A. 23-2505(e) (2014 Supp.).
46.

A district court clerk does not authorize persons to perform marriage rites; clerks
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play no role in the function set forth in K.S.A. 23-2504 (2014 Supp.).
47.
A district court clerk is not the official records custodian for marriage license
records in Kansas. K.S.A. 23-2512 (2014 Supp.).
48.
A district court clerk has no role in determining the validity of marriage in
Kansas, including such matters as intestate succession.
49.
K.S.A. 23-2510 (2014 Supp.) imposes a license fee imposed on each marriage
applicant of $59 which is remitted to the state treasurer to be deposited to several different
state funds, including the protection from abuse fund, the family and children trust account of
the family and children investment fund, the crime victims assistance fund, the nonjudicial
salary adjustment fund and the state general fund.
50.
On October 6, 2014, Kerry Wilks and Donna DiTrani went to the Sedgwick
County Courthouse to apply for a marriage license.
51.

Wilks spoke to an African American person at the desk.

52.
Wilks asked to speak to the African American womans supervisor, then to
someone in charge.
53.
Neither Wilks nor DiTrani identified Bernie Lumbreras as someone they had
spoken to regarding their application.
55.
Judge Fleetwood informed Wilks and DiTrani that he was unable to authorize the
issuance of a marriage license.
56.
Wilks and DiTrani met with Judge Fleetwood at the courthouse in his
waiting room.
57.

Wilks and DiTrani knew he was a judge of the district court.

58.
On or about October 7, 2014, the Office of Judicial Administration issued a
memorandum advising the 31 Chief Judges of the recommendation that applicants for samesex marriage licenses should be referred to the chief judge for determination.
59.
On October 7, 2014, Sandy McCurdy, Clerk of the District Court for the 10th
Judicial District, received an application from a same-sex couple to obtain a marriage
license pursuant to K.S.A. 23-2505(a).
60.
Clerk McCurdy referred the application to Tenth Judicial District Chief Judge
Kevin P. Moriarty.
61.
On October 8, 2014, Chief Judge Kevin P. Moriarty issued Amended
Administrative Order No. 14-11, directing the Clerk of the District Court to issue marriage
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licenses to same-sex couples provided they were otherwise qualified to marry under Kansas
law.
62.
On or about October 8, 2014, the Clerk of the District Court of the 7th Judicial
District referred the Marriage License Application of Thomas Tuozzo and Robert Hedlund to
the Chief Judge for review of whether the same-sex applicants were legally entitled to a
marriage license under Kansas law.
63.
On October 8, 2014, Chief Judge Fairchild issued Administrative Order 14-13
analyzing existing Kansas law regarding same-sex marriage licenses and in the last
paragraph providing: [t]he Clerk of the District Court shall not issue a marriage license to
these applicants or to any other applicants of the same sex. When the Clerk rejects the
application, the clerk shall give the applicants a copy of this order.
64.

Michelle Brown attended and graduated from Washburn Law School.

65.

Brown works as a prosecutor in Geary County.

66.
Before the application was denied, Michelle Brown was aware as of Wednesday
October 8 or Thursday October 9, 2014 that the Douglas county clerks office would not
accept a same sex marriage application. Brown read the administrative order issued by
Chief Judge Fairchild. Brown assumed that the clerks office staff would obey the
Chief Judges Order.
67.
On Thursday, October 9, 2014, Wilks and DiTrani returned to the Sedgwick
County Courthouse and were given an application for a marriage license, which they
returned to the person at the desk. They were asked to wait.
68.
Wilks and DiTrani were asked to come back up and a prepared sheet was read
that they would not issue a license at that time. Wilks recorded this on a video recording.
69.
The October 9 determination regarding Wilks and DiTranis application and
the statement was issued by Judge Eric Yost acting in Chief Judge Fleetwoods absence.
70.
Wilks and DiTrani never returned to the Clerks Office to submit a completed
worksheet or to request issuance of a marriage license.
71.
Pursuant to Chief Judge Moriartys Order in Johnson County, Clerk McCurdy
issued a marriage license to same-sex applicants on October 10, 2014.
72.
On October 10, 2014, in the Kansas Supreme Court, the Kansas Attorney
Generals Office filed a petition for issuance of writ of mandamus and request for immediate
relief against respondents Chief Judge Moriarty and Sandy McCurdy on behalf of the State of
Kansas. The action as assigned case no. 112,590. The filings in State ex. rel. Schmidt v.
Moriarty are subject to judicial notice as per Fed. R. Evid. 201(b). A copy of the
Supreme Courts November 18, 2014 decision is in the record as Doc. 59-6.
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73
On October 10, 2014, in case no. 112,590, the Kansas Supreme Court granted the
States request for a temporary stay of Amended Administrative Order 14-11. The stay was
granted in the interest of establishing statewide consistency pending the Courts further order.
74.
On November 13, 2014, Chief Judge Fairchild issued Administrative Order 1417, repealing Administrative Order 14-13, directing Hamilton to issue same sex marriage
licenses to applicants who are otherwise qualified.
75.
On November 13, 2014, Chief Judge Fleetwood issued Administrative Order
14-08, directing Lumbreras to issue same sex marriage licenses to applicants who are otherwise
qualified.
81.
K.S.A. 2014 Supp. 23-2507 requires the registration of all marriages under
the supervision of the secretary of health and environment as provided in K.S.A. 65-102.
K.S.A. 65-102 directs the KDHE secretary to prepare the blank forms used to gather vital
statistics related to marriages that have already been performed. It gives the KDHE
secretary no supervisory authority over decisions concerning denial of applications based on the
sex of the applicants.
82.
K.S.A. 2014 Supp. 23-2509 directs the secretary of health and environment to
supply marriage certificate forms and describes how the forms are to be used in recording
marriages. This statute gives the KDHE secretary no supervisory authority over court
personnel in deciding whether to issue marriage licenses.
83.
K.S.A. 2014 Supp. 23-2512 directs the KDHE secretary to maintain indexed
records of marriages once they have been performed and to provide certified copies when
requested. It gives the KDHE secretary no authority over court personnel in deciding
whether to issue marriage licenses.
84.
Any guidance provided by KDHE employees to court personnel is limited to
helping them fill out the forms to report information to the Office of Vital Statistics. None of
the advice provided by KDHE employees relates to the performance by court personnel of
their role in assuring that marriage licenses are not issued to persons who are not legally
entitled to be married.
85.
Prior to the filing of the First Amended Complaint in the above captioned
matter, new marriage license forms were distributed to Kansas district court clerks that
delete all references to men, women, husbands, wives, brides or grooms. These new forms
are intended for use when applicants of the same sex present themselves to apply for marriage
licenses, and the court clerks have been advised to employ the new forms for that purpose.
86.
The Kansas State Employees Health Care Commission is an independent
agency of the State of Kansas that is not subordinate to the Kansas Department of Health and
Environment. See K.S.A. 75-6502.

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87.
Health insurance for state employees and certain of their dependents is
regulated by statute and administrative regulations. K.S.A. 2014 Supp. 75-6501(c) gives to the
Kansas State Employees Health Care Commission the authority to define what persons may or
may not qualify for insurance benefits under the plan. Eligibility rules are not made by the
Director of the Kansas State Employee Health Benefits Plan.
88.
Participation in the states health care benefits program is voluntary. Employees
decide whether to seek to add a dependent to an employees health insurance coverage. An
employees dependents have no right to apply for coverage themselves.
89.
The current categories of dependent persons who are potentially eligible for
coverage if an employee chooses to apply for that coverage are set forth in K.A.R. 108-1-1.
This regulation was amended effective January 2, 2015. The regulation requires that the status
of dependent spouse be determined under Kansas law, not the law of any other state. The
regulation has no language expressly determining whether a spouse can or cannot be a person
of the same sex as the employee requesting to add the dependent spouse.
90.
Defendant Michael has not participated in any communications with plaintiffs
Peters, Mohrman, Bohnenblust, and Hickman concerning their alleged attempts to obtain
dependent spouse coverage. Neither Defendant Michael nor anyone employed in his
agency has authority to decide constitutional challenges to Kansas laws or administrative
regulations. Any state employee who wishes to challenge the constitutionality of a statute or
regulation would need to obtain a judgment from a court of competent jurisdiction.
91.
For taxpayers who use the filing status on their federal personal income tax
returns of married filing separately, there is no additional preparatory work needed to fill out
their state personal income tax returns using single filing status other than transferring the
information from the federal forms to the state forms.
92.
Kansas imposes the same personal income tax rates on residents who file as
single unmarried persons or as married residents filing separately.
93.
Kansas' Form K-40 personal income tax return is a "self-assessment" tax
document. Once the return is filed, and assuming that the same is not adjusted or audited by
the Department, the amount of tax shown on the return becomes the assessment of the filer's
Kansas personal income tax.
94.
For same-sex taxpayers submitting a federal return as married filing
separately, their income would already be separated on the federal income tax return, and
those numbers could be used to submit the Kansas return.
95.
No Notice 13-18 worksheet is needed for couples filing federal returns under the
status married filing separately as their income is already separated.

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b. The parties have stipulated to the admissibility of the following exhibits for
purposes of summary judgment and trial: NA

3.

FACTUAL CONTENTIONS.

a. Contentions of Plaintiffs.
i. Kansas law prohibits the issuance of marriage licenses to couples of the same sex and
further prohibits the recognition of same-sex marriages solemnized in Kansas or
elsewhere. KAN. CONST., art. 15, 16; Kan. Stat. Ann. 23-2501; Kan. Stat. Ann.
23-2508.
ii. Plaintiffs Kail Marie and Michelle Brown and Plaintiffs Kerry Wilks and Donna
DiTrani (hereafter Marriage License Plaintiffs) are same-sex couples who wish to
marry in Kansas.

iii. The Marriage License Plaintiffs applied for marriage licenses in Douglas and
Sedgwick Counties in October 2014, but personnel in the district court clerks offices
in those counties denied those applications for marriage licenses based on KAN.
CONST., art. 15, 16, Kan. Stat. Ann. 23-2501, and Kan. Stat. Ann. 23-2508.
Refusing to permit the Marriage License Plaintiffs to marry in Kansas pursuant to
those laws violates the Plaintiffs rights to due process and equal protection.

iv. Plaintiffs James Peters and Gary Mohrman were married in Iowa in 2010.
v. Plaintiffs Peters and Mohrman file their federal income tax returns as married filing
separately. Plaintiffs Peters and Mohrman would like to file their Kansas income tax
returns as married. Based on the Kansas laws banning the recognition of same-sex
marriages, however, the Kansas Department of Revenue (KDOR) prohibits samesex married couples, including Plaintiffs Peters and Mohrman, from filing their state
income tax returns as married and requires them to file as single even though
they are married. Refusing to recognize the Plaintiffs marriage in Kansas based on
the laws prohibiting recognition of same-sex marriages violates the Plaintiffs rights
to due process and equal protection.

vi. Plaintiff Peters is an employee of the University of Kansas and is thus eligible for
health insurance benefits under the State Employee Health Plan (SEHP). The
SEHP allows different-sex married couples to add their lawful spouses as dependents
covered by the SEHP. Plaintiff Peters has applied to add his lawful husband, Plaintiff
Mohrman, as his spouse for purposes of health insurance coverage under the SEHP.
Based on the Kansas laws banning the recognition of same-sex marriages, however,
the SEHP prohibits Plaintiff Peters from adding Plaintiff Mohrman as his spouse for
health care dependent benefits. Refusing to recognize the Plaintiffs marriage in
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Kansas based on the laws prohibiting recognition of same-sex marriages violates the
Plaintiffs rights to due process and equal protection.

vii. Plaintiff Carrie Fowler married Plaintiff Sarah Braun in Illinois in 2014. When they
married, Plaintiff Fowler took Plaintiff Brauns last name as her last name. Plaintiff
Carrie Fowler has successfully changed her last name from Fowler to Braun on her
records with the Social Security Administration. In June 2014, Plaintiff Fowler
applied to the KDORs Division of Vehicles to change her last name from Fowler to
Braun on her Kansas drivers license, but based on the Kansas laws banning the
recognition of same-sex marriages the KDORs Division of Vehicles refused to
change Plaintiff Fowlers last name on her Kansas drivers license. Refusing to
recognize the Plaintiffs marriage in Kansas based on the laws prohibiting recognition
of same-sex marriages violates the Plaintiffs rights to due process and equal
protection.

viii.

Plaintiffs Darci Bohnenblust and Joleen Hickman were married in Riley County,
Kansas, on November 13, 2014.

ix. Plaintiff Bohnenblust is an employee of Kansas State University and is thus eligible
for health insurance benefits under SEHP. The SEHP allows different-sex married
couples to add their lawful spouses as dependents covered by the SEHP. Plaintiff
Bohnenblust has applied to add her lawful wife, Plaintiff Hickman, as her spouse for
purposes of health insurance coverage under the SEHP. Based on the Kansas laws
banning the recognition of same-sex marriages, however, the SEHP prohibits Plaintiff
Bohnenblust from adding Plaintiff Hickman as her spouse for health care dependent
benefits. Refusing to recognize the Plaintiffs marriage in Kansas based on the laws
prohibiting recognition of same-sex marriages violates the Plaintiffs rights to due
process and equal protection.

x. Kansas law provides that At the time of marriage, a person may designate a new
legal name, by which such person shall subsequently be known. Kan. Stat. Ann.
23-2506(a). At the time of their marriage, Plaintiff Bohnenblust designated Pottroff
as her new last name, and Plaintiff Hickman designated Spain as her new last name.
Those names were duly reflected on their marriage license, which was endorsed by
the person who performed their marriage on November 13, 2014. Plaintiffs
Bohnenblust and Hickman have successfully changed their last names on their
records with the Social Security Administration. In November 2014, Plaintiffs
Bohnenblust and Hickman applied to the KDORs Division of Vehicles to change
their last names on their Kansas drivers licenses, but based on the Kansas laws
banning the recognition of same-sex marriages the KDORs Division of Vehicles
refused to change Plaintiff Bohnenblusts last name to Pottroff on her Kansas drivers
license and refused to change Plaintiff Hickmans last name to Spain on her Kansas
drivers license. Refusing to recognize the Plaintiffs marriage in Kansas based on
the laws prohibiting recognition of same-sex marriages violates the Plaintiffs rights
to due process and equal protection.

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b. Contentions of Defendants.
i.

None of the defendants is presently engaged in any practice that violates a federal
right of any of the plaintiffs. Without an ongoing violation of some plaintiffs federal
rights by each defendant the Court lacks subject matter jurisdiction under the
Eleventh Amendment to the United States Constitution.

ii. Defendant Susan Mosier, M.D. has not interfered with the issuance of a marriage
license to any plaintiff. There is no factual basis for a claim against her in this
lawsuit. She is not a defendant with regard to any claim of non-recognition of marital
status. Same-sex marriages performed in Kansas are treated exactly the same as
opposite-sex marriages, for purposes of record-keeping at KDHE.
iii. Defendants Clerks Douglas A. Hamilton and Bernie Lumbreras are not proper parties
and this Court lacks jurisdiction over them for reasons stated in opposition to the
motion for preliminary injunction and in the motion to dismiss the Amended
Complaint. Clerk Hamilton and Clerk Lumbreras did not make the decisions
complained of by Marie, Brown, Wilks and DiTrani rather, it is uncontested that the
decisions not to issue marriage licenses to the original four plaintiffs were made by
judges of the district court, namely Chief Judge Robert Fairchild and Chief Judge
James Fleetwood, acting in their judicial capacities and making judicial decisions on
whether Kansas law authorized the issuance of same-sex marriage licenses, a judicial
function for which immunity is provided under 42 U.S.C. 1983, as well as judicial
immunity in general. Since the issuance of the preliminary injunction, it is
undisputed that Hamiltons and Lumbreras Offices have been issuing same-sex
marriage licenses; Plaintiffs Marie, Wilks, Brown and DiTrani have not returned to
request issuance of a license from these clerks and have stated they have no intention
of doing so until this litigation, including all appeals, is completed. Plaintiffs have
testified that they no longer have a present interest in obtaining marriage licenses, but
rather are seeking other legal benefits of marriage, including recognition of their
status by private parties such as insurance providers, hospitals, and others and other
social and legal benefits, benefits which the Clerks cannot give them. The Clerks
have absolutely no role in marriage recognition and are not a proper party as to
such claims. The Clerks are not proper or necessary defendants in this case.
iv. Defendant Jordan is not a proper party, and the Court lacks subject matter jurisdiction
over any grievance related to the Kansas Department of Revenue. The Tax Injunction
Act, 28 U.S.C. 1341, bars the relief requested against defendant Jordan, which is
also barred by principles of comity. None of the plaintiffs is being unlawfully
discriminated against by KDOR.
v. Defendant Kaspar is not a proper party, and her division of KDOR is not engaged in
any form of unlawful discrimination against any plaintiff. The laws of Kansas require
an applicant to present a Kansas marriage license that shows a new name rather than a
name previously used by the applicant before KDOR issues a driving license in that

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new name. No plaintiff has presented to KDOR the paperwork that would entitle her
to issuance of a license in a new name under the statute.
vi. No federal claim is stated against defendant Michael, and the relief requested against
him is beyond the Courts jurisdiction under the Eleventh Amendment. Employee
health insurance for state employees is not governed by any federal law. All policies
administered by defendant Michael are consistent with the federal constitution and
relevant federal statutes. The relief sought by plaintiffs would violate the Eleventh
Amendment because it would require payment of state funds for health benefits.

4.

LEGAL CLAIMS AND DEFENSES.

a. Legal Claims of Plaintiffs.


All Plaintiffs assert that they are entitled to relief upon the following theory: The Kansas
laws prohibiting the issuance of marriage licenses to same-sex couples and prohibiting the
recognition of same-sex marriages solemnized in Kansas or elsewhere violate the rights of
Plaintiffs to due process and equal protection as guaranteed by the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution.
Plaintiffs challenge the constitutionality of those Kansas laws both on their face and as
applied.

b. Defenses of Defendants.
i. FAILURE TO STATE A CLAIM ON WHICH RELIEF MAY BE GRANTED:
Defendants object to the misstatement of the claims of plaintiff insofar as they deviate
materially from the allegations of the first amended complaint, which sets forth
different claims for some of the plaintiffs than are made by the other plaintiffs.
Defendants also object to the lack of specificity in plaintiffs claims, which do not
identify with particularity the constitutional provisions, statutes, regulations, or other
rules of law that they seek to have declared facially unconstitutional. In addition to
failing to comply with the requirements of Fed. R. Civ. P. 8(a) and 65(d), by failing to
identify the statutes, regulations, or other rules of law that they seek to have declared
facially unconstitutional plaintiffs would deprive defendants of due process of law by
preventing them from defending the constitutionality of each challenged provision of
law.
ii. NO CONSTITUTIONAL RIGHT TO MARRY BASED SOLELY ON
PERSONAL CHOICE: Defendants deny that plaintiffs have a constitutional right to
marry a particular person of unfettered choice because any such right would
invalidate every form of legal restriction on marriage, including prohibitions against
polygamy, incestuous marriage, and underage marriage, and would create a
constitutional right for any and every legal person to marry any and every legal
person without restriction, in effect destroying the legal institution of marriage as it
has been practiced since before the adoption of the United States Constitution. A
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successful facial challenge to Kansas marriage laws would invalidate every such
restriction, not just the application of the law to monogamous same-sex marriages
between unrelated adult natural persons.
iii. LACK OF SUBJECT MATTER JURISDICTION: Defendants contend that this
Court lacks subject matter jurisdiction over the claims in this lawsuit for multiple
reasons including 1) that there is no case or controversy between the plaintiffs and the
defendants; 2) that the requests for retroactive relief against the clerks is barred by
Eleventh Amendment and judicial immunity; and 3) that Plaintiffs allegations in the
Amended Complaint which seek permanent injunctions against any sources of
state law that exclude same-sex couples from marriage and that prohibit the
recognition of same-sex marriages performed in Kansas and elsewhere, fail to assert
a basis for federal jurisdiction and fail to state a federal cause of action for which
relief may be granted.
iv. NO FEDERAL CAUSE OF ACTION FOR THE RELIEF REQUESTED:
Plaintiffs Amended Complaint fails to present a factual and legal basis for the relief
requested. Not every grievance concerning the alleged deprivation of an alleged
federal right gives right to a federal cause of action. Without a Congressionallygranted right to a private remedy, these plaintiffs have no right to litigate their
challenges in federal court. The Tax Injunction Act, 28 U.S.C. 1341, bars the relief
requested against defendant Jordan, which is also barred by principles of comity.
v. NONCOMPLIANCE WITH F.R.C.P. 5.1: Any challenge to non-recognition of
marriages entered into in other states is beyond the Courts subject matter jurisdiction
by reason of plaintiffs failure to notify the United States Attorney General of their
challenge to the constitutionality of the federal Defense of Marriage Act, which
expressly authorizes the state laws that plaintiffs seek to nullify. Kansas laws refusing
to give legal effect to out-of-state same-sex marriage are expressly permitted by
federal law, 28 U.S.C. 1738C. Because plaintiffs contend that any application of 28
U.S.C. 1738C that would legalize Kansas marriage laws would violate their
constitutional rights and the plain intent of 28 U.S.C. 1738C is to ratify states
nonrecognition of same-sex marriages entered into in other states, the
constitutionality of 28 U.S.C. 1738C has been placed in issue. Plaintiffs have not
even attempted to comply with the preconditions for challenging the constitutionality
of 28 U.S.C. 1738C here.
vi. NO PRESENT CASE OR CONTROVERSY AGAINST THE NAMED
DEFENDANTS: The unmarried plaintiffs are free to obtain marriage licenses from
the defendant court clerks at any time pursuant to the controlling orders issued by the
chief judges in their respective districts and an order of the Kansas Supreme Court.
Those orders will not change unless and until the United States Supreme Court
decides against the issues raised by plaintiffs. Because the unmarried plaintiffs plan to
remain unmarried for the foreseeable future, there is no case or controversy stated by
them and they lack standing to sue. None of the plaintiffs is being unlawfully

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discriminated against by KDHE or KDOR. No federal law is being violated by


KSEHP.
vii. NO LEGAL STANDING TO SUE: None of the plaintiffs can show significant legal
injury of the sort that would justify the issuance of a permanent injunction. The
voluntarily unmarried plaintiffs are not injured by any act of the defendants, and any
claimed injury results exclusively from their own decision to remain single. The
married plaintiffs have demonstrated no injury to a right protected by federal law.
viii. NO UNEQUAL TREATMENT BY DEFENDANTS: Plaintiffs Peters and
Mohrman do not alleged that they are treated any differently than heterosexual
married couples under the Kansas tax guidance document complained of rather,
they complain that state income tax law is not the same as federal income tax law,
which fails to state an equal protection claim. Similarly, Plaintiffs Fowler and Braun
complain that defendants Jordan and Kaspar refuse to let them rely on Illinois
marriage papers to accomplish a name change on a drivers license but there is no
allegation that a heterosexual married in Illinois would be treated differently under
Kansas law this is not an equal protection issue. Plaintiffs Bohnenblust and
Hickman allege that they were not allowed to restore their premarital surnames
appearing on their birth certificates by presenting a marriage license; however, they
do not allege that a heterosexual couple would have been permitted to achieve name
restoration in this manner.
ix. NO JUSTICIABLE GRIEVANCE RELATED TO HEALTH INSURANCE:
Although four Plaintiffs claim that their right to participate in the Kansas State
Employee Health Plan was unlawfully denied or impaired in November of 2014, all
four have testified that the change sought would not financially benefit them and
identify no federal law which would require the coverage they seek. Arguments of
disparate treatment of similarly situated insurance applicants, even if made, do not
give rise to an equal protection violation. Moreover, any order the Court might issue
to the State to use taxpayer monies to pay these plaintiffs medical expenses is barred
by Eleventh Amendment immunity.
x. NO SEVERABILITY OF COMPLAINTS AGAINST KANSAS
CONSTITUTION: The relief requested by plaintiffs is not available because they
seek to suppress only part of the Kansas constitutional and statutory definitions of
marriage as a relationship between one man and one woman. There is no factual or
legal basis for artificially severing out the special interest of adult monogamous
homosexual persons for distinct and separate treatment under the Constitution. If
these provisions are facially unconstitutional then the prohibition on polygamous,
incestuous, and underage marriages must fail along with the prohibition on same-sex
marriages.
xi. FAILURE TO JOIN NECESSARY PARTIES UNDER F.R.C.P. 19: Plaintiffs
have failed to notify and/or join all proper, necessary and indispensable parties to the
relief being requested, including but not limited to the United States Attorney General
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as to DOMAs constitutionality, and the Chief Judges of the Judicial Districts in


question, and the private persons who fail to treat plaintiffs with the dignity Plaintiffs
demand as a constitutional right.
xii. RESERVATION OF RIGHT TO FILE ANSWERS: Defendants Jordan, Kaspar,
and Michael have not yet filed answers and will not be obligated to file answers until
their pending motions to dismiss have been ruled upon. These defendants therefore
reserve the right to raise additional defenses as soon as the Court decides the motions
to dismiss.

5.

DAMAGES AND NON-MONETARY RELIEF REQUESTED.

Pursuant to 28 U.S.C. 2201, Plaintiffs seek a declaratory judgment that the challenged
Kansas laws are unconstitutional in violation of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment to the United States Constitution. Pursuant to 42 U.S.C. 1983,
Plaintiffs also seek the following permanent 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,
servants, 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
Annotated 23-2501 and 23-2508, and any other sources of state law that permit or require
Defendants 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,
servants, employees, attorneys, and other persons who are in active concert or participation with
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
restrictions 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
officers, 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 freedom to marry, and to recognize marriages validly entered into by same-sex
couples including Plaintiffs.
(c) requiring Defendant Jordan, in his official capacity and all officers, agents, servants,
employees, attorneys, and other persons who are in active concert or participation with
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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
elsewhere by same-sex couples including Plaintiffs for purposes of issuing new drivers
licenses to married same-sex spouses who change their names as part of the marriage
licensure process; and
(e) requiring Defendant Michael in his official capacity and all officers, agents, servants,
employees, attorneys, and other persons who are in active concert or participation with
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 Kansas
State Employees Health Plan (SEHP) to add their same-sex spouses as dependents
covered by the SEHP.
Finally, Plaintiffs claim an entitlement to attorneys fees under 42 U.S.C. 1988.

6.

AMENDMENTS TO PLEADINGS.
None.

7.

DISCOVERY.
Under the scheduling order (Doc. 91), discovery was to have been completed by

April 22, 2015. Discovery is complete.


Unopposed discovery may continue after the deadline for completion of discovery
so long as it does not delay the briefing of or ruling on dispositive motions or other
pretrial preparations. Although discovery may be conducted beyond the deadline for
completion of discovery if all parties are in agreement to do so, under these
circumstances the court will not be available to resolve any disputes that arise during the
course of such extended discovery.

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8.

MOTIONS.

a. Pending Motions.
i. Motion to Dismiss Amended Complaint by Defendant Robert D. Moser (Doc.
57), filed December 10, 2014, amended by Doc. 60 filed December 11, 2014.
ii. Motion to Dismiss Amended Complaint by Defendants Douglas A. Hamilton
and Bernie Lumbreras (Doc. 59), filed December 10, 2014.
iii. Motion to Dismiss for Failure to State a Claim and/or Lack of Subject Matter
Jurisdiction by Defendants KDOR, KDOR Division of Vehicles and Kansas
State Employee Health Plan (Doc. 79), filed January 20, 2015.
iv. Motion for Summary Judgment by Plaintiffs Bohnenblust, Braun, Brown,
DiTrani, Fowler, Hickman, Marie, Mohrman, Peters, Wilks (Doc. 86), filed
February 13, 2015.
b. Additional Pretrial Motions.
After the pretrial conference, the parties intend to file the following motions:
Defendants may file a dispositive motion following Supreme Court action in
Obergefell v. Hodges, et al., 14-556.
The dispositive-motion deadline, as established in the scheduling order and any
amendments, was February 28, 2015, subject to potential extension following U.S.
Supreme Court action, which may require a supplemental deadline.
The parties should follow the summary-judgment guidelines available on the
courts website:
http://www.ksd.uscourts.gov/summary-judgment/
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Consistent with the scheduling order filed earlier in this case, the arguments
and authorities section of briefs or memoranda must not exceed 30 pages, absent an order
of the court.
c. Motions Regarding Expert Testimony. Not applicable, i.e., the parties
have stipulated that no expert testimony will be used in this case.
9. TRIAL.
The trial docket setting, as established in the scheduling order and any
amendments, is November 3, 2015, at 9:00 a.m., in Kansas City, Kansas. This case
will be tried by the court sitting without a jury. Estimated time of trial is expected to be
one day. The court will attempt to decide any timely filed dispositive motions
approximately 60 days before trial. If no dispositive motions are timely filed, or if the
case remains at issue after timely dispositive motions have been decided, then the trial
judge will convene another pretrial conference to discuss, among other things, the setting
of deadlines for filing final witness and exhibit disclosures, exchanging and marking trial
exhibits, designating deposition testimony for presentation at trial, motions in limine,
proposed instructions in jury trials, and proposed findings of fact and conclusions of law
in bench trials.
IT IS SO ORDERED.
Dated May 22, 2015, at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
U. S. Magistrate Judge
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OFFICE OF ATTORNEY GENERAL


DEREK SCHMIDT

s/ Steve R. Fabert
Steve R. Fabert, #10355
M.J. Willoughby, #14059
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420; Fax: (785) 296-6296
Email: Steve.Fabert@ag.ks.gov
MJ.willoughby@ag.ks.gov
Attorneys for Defendants

/s/ Stephen Douglas Bonney


Stephen Douglas Bonney (#12322)
ACLU Foundation of Kansas
3601 Main Street
Kansas City, Missouri 64111
(816) 994-3311
(816) 756-0136-fax
dbonney@aclukswmo.org
Mark P. Johnson, KS Bar #22289
Denton US, LLP
4520 Main Street
Suite 1100
Kansas City, MO 64111
816/460-2400
816/531-7545 (fax)
Mark.johnson@dentons.com
Joshua A. Block [admitted pro hac vice]
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, Eighteenth Floor
New York, NY 10004
(212) 549-2593
jblock@aclu.org

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