FILED NUV 14 2014 -ATHER L. SMITH IN THE SUPREME COURT OF THE STATE OF KANSAS2X or APPELLATE: STATE OF KANSAS ex rel. DEREK SCHMIDT, Attorney General, Petitioner, 14-112590 -g§ v. ORIGINAL ACTION NO.Q ) ) d ) ) KEVIN P. MORIARTY, Chief Judge, ) Tenth Judicial District and SANDRA. ) McCURDY, Clerk of the District Court, ‘Tenth Judicial District, ) ) Respondents.) ) RESPONSE OF STATE OF KANSAS TO ORDER TO SHOW CAUSE. Petitioner, State of Kansas, on the relation of Attomey General Derek Schmidt, hereby submits its response to the Court's order to show cause, dated November 5, 2014, The Court's order directs the parties to show cause why: “1, Our October 10 order temporarily staying [Judge] Moriarty’s order insofar as it allows the issuance of marriage licenses to same-sex couples should, or should not, remain in full force and effect pending final resolution of the federal matter; “2. Our consideration of this mandamus action otherwise should, or should not, be stayed pending final resolution of the federal matter ‘The State urges the following actions by this Court: First, the mandamus relief requested by Petitioner should be granted (in effect, the stay should remain in place and be made permanent) specifically as to Administrative Order 14-11,| thereby placing the Tenth Judicial District in the same position as 28 other judicial districts that have responded to the federal court’s preliminary injunction afler it was entered. Second, this Court should consider providing guidance to all the judicial districts ~ whether in the form of administrative guidance outside the scope of a case, whether as non-binding dicta in this case, or whether in a separate case that is properly brought and will inevitably reach this Court — as to how the preliminary injunction currently entered in the federal matter applies to state judicial districts that are not named as parties in that suit, Disposing of this case by disabling the prematurely and improperly issued Administrative Order 24-11 would be an important first step toward providing that guidance. For the reasons described below and throughout the Petitioner's briefings in this case, Administrative Order 14-11 was uniawfully entered on October 10. Even if it ‘subsequently becomes harmonized with the underlying constitutional law, it would still be unlawful ab initio because it exceeded the jurisdiction of the Court at the time it was entered. That jurisdictional defect injected by the district court cannot, and should not, be cured by this Court in this proceeding. Any attempt to do so would merely inject further uncertainty and confusion into this situation (and many others) by telegraphing to other district court judges that they are free to abandon settled Kansas law, including the precedents of this Court, outside the confines and safeguards of the ordinary process of litigation, without waiting for guidance from this Court or from the appropriate federal courts as to whether the Kansas law in question remain valid Petitioner respectfully suggests that this Court should permanently bar enforcement of Administrative Order 14-11 so a5 not to inject further confusion into this (or any other) situation by inviting district court judges to "jump the gun” and begin speculating about what the law maybecome before it actually becomes so. Because this Court's precedent teaches that merely being “right” about the constitutional question underlying an extra-jurisdictional judicial action cannot salvage that action, the question of the effect of Marie v. Maser on Kansas law is not properly presented in this ease and, thus, should not be part of this Court's core holding in resolving this case, Petitioner submits that there is no legal or equitable reason why the requested writ of ‘mandamus should not issue during the pendency of the case of Marie et al. v. Moser et al., Case No. 14-cv-2518-DDC-TJJ in the District Court for the District of Kansas (“the federal matter” Resolution of this mandamus action does not require delay to learn the ultimate outcome of the Marie case. The requested mandamus relief does not require any Court to determine whether the marriage laws of Kansas are constitutional. The challenged administrative order was improper because it was issued without lawful authority, and whatever the ultimate resolution of the constitutional issues addressed in Marie v. Moser case turns out to be that resolution cannot retroactively supply the district court with the jurisdiction it lacked when it entered the administrative order in October. Any orders issued by the Kansas Supreme Court to resolve this case will not result in additional confusion, particularly if this Court decides this case on the grounds urged by Petitioner, beyond whatever confusion has already resulted from the contradictions between federal circuits and the United States Supreme Court's delay in deciding the ultimate constitutional issue of the applicability of the 14th Amendment to certain state marriage laws. Judge Crabtree has already announced his conclusion that the opinion of any Kansas appellate court on the constitutional issue is irrelevant to his resolution of the claims presented in Marie v. Moser.