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Case No. 14-3246

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
KAIL MARIE and MICHELLE L. BROWN, and KERRY WILKS, Ph.D and
DONNA DITRANI, Plaintiffs/Appellees,
v.
ROBERT MOSER, M.D. in his official capacity as Secretary of the Kansas
Department of Health and Environment and
DOUGLAS A. HAMILTON, in his official capacity as Clerk of the District Court
for the 7th Judicial District (Douglas County)
and BERNIE LUMBRERAS in her official capacity as Clerk of the District Court
for the 18th Judicial District (Sedgwick County)

On Appeal from the United States District Court

For the District of Kansas
The Honorable Daniel D. Crabtree
United States District Judge
Case No. 14-CV-02518-DDC/TJJ

JOINT REPLY BRIEF OF APPELLANTS

OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT
By: s/ Steve R. Fabert
Steve R. Fabert, KS Sup. Ct. No. 10355
Assistant Attorney General
120 SW 10th, 2nd Floor
Topeka, Kansas 66612
Tel: 785-368-8420
E-mail: steve.fabert@ag.ks.gov
Attorney for Defendant/Appellant Moser
ORAL ARGUMENT IS REQUESTED

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TABLE OF CONTENTS
ARGUMENT AND AUTHORITIES ........................................................................ 1
1. FOR THE REASONS ASSERTED IN THE OPENING BRIEF, NOT
CONTROVERTED IN THE RESPONSE, THE PRELIMINARY
INJUNCTION WAS BARRED BY THE ROOKER-FELDMAN
DOCTRINE AND BY THE EXPRESS TERMS OF 42 U.S. C. 1983
PROHIBITING PRELIMINARY INJUNCTIVE RELIEF AGAINST
JUDICIAL OFFICERS FOR JUDICIAL ACTS, WHICH, BASED ON
THIS RECORD, WAS THE CASE IN KANSAS. ......................................... 2
2. THERE IS NEITHER A LEGAL BASIS NOR A LEGAL BASIS FOR
THE ISSUANCE OF A PRELIMINARY INJUNCTION AGAINST DR.
MOSER............................................................................................................7
CONCLUSION ........................................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................12
CERTIFICATE OF PRIVACY REDACTIONS .....................................................12
CERTIFICATE OF DIGITAL SUBMISSION .......................................................12
CERTIFICATE OF SCANNING ............................................................................13
CERTIFICATE OF SERVICE ................................................................................13
TABLE OF AUTHORITIES
CASES
American Tradition Institute v. Colorado
876 F. Supp. 2d 1222, 1238-39 (D. Colo. 2012) ............................................. 9
Arizonans for Official English v. Arizona
520 U.S. 43 (1997)...........................................................................................1
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Bishop v. Smith
760 F.3d 1070 (10th Cir. 2014) ........................................................................ 9
Buchheit v. Green
705 F.3d 1157 (10th Cir. 2012) ...................................................................1, 7
Cook v. City of Topeka
232 Kan. 334, 654 P.2d 953, 957 (1982)......................................................... 6
Chamber of Commerce of U.S. v. Edmondson
594 F.3d 742, 764 (10th Cir.2010) ................................................................... 9
D.C. Court of Appeals v. Feldman
460 U.S. 462 (1983).........................................................................................3
DeBoer v. Snyder
No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014) ................................ 9
Ex parte Young
209 U.S. 123 (1908).........................................................................................7
Kitchen v. Herbert
755 F.3d 1193 (10th Cir. 2014) ....................................................................... 5
Knox v. Bland
632 F.3d 1290 (10th Cir. 2011) ........................................................................ 7
Peterson v. Martinez
707 F.3d 1197 (10th Cir. 2013) ........................................................................ 9
Supreme Court of Virginia v. Consumers Union of United States, Inc.,
446 U.S. 719 (1980).........................................................................................7

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CONSTITUTIONAL PROVISIONS
Kan. Const., Art. 3, 1 ..............................................................................................9
STATUTES
Federal
42 U.S.C. 1983 ............................................................................................1, 4, 6, 7
State
K.S.A. 20-101 ............................................................................................................9
K.S.A. 20-318 (2014 Supp) .......................................................................................9
K.S.A. 20-319 (2014 Supp) .......................................................................................9
K.S.A. 20-329 (2014 Supp) .......................................................................................9
K.S.A. 20-343 (2014 Supp) .......................................................................................9
K.S.A. 20-345 (2014 Supp) .......................................................................................9
K.S.A. 23-2505 (2014 Supp) .............................................................................3, 5, 6

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ARGUMENT AND AUTHORITIES

SUMMARY OF REPLY ARGUMENT
The preliminary injunction should not have issued because its purpose was
to interfere with the judicial discretion of state court officials performing judicial
functions. The preliminary injunction afforded no relief to any of the Plaintiffs -Marie, Brown, Wilks and DiTrani,-- who have elected not to attempt to pick up the
licenses they urged the district court to provide them via the preliminary
injunction. Given Plaintiffs subsequent admissions that they do not intend to seek
a marriage license in Kansas, Plaintiffs lack standing and a justicable case or
controversy within the Article III jurisdiction of the federal courts and Plaintiffs
are seeking merely retrospective relief, barred by the Eleventh Amendment. See,
e.g, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997); Buchheit v.
Green, 705 F.3d 1157 (10th Cir. 2012).
Based upon the undisputed facts of record, Marie, Brown, Wilks and
DiTrani asked the district court below to review decisions of State Court Chief
Judges Fairchild and Fleetwood and to grant preliminary injunctive relief against
those Judges and their Orders, the precise relief barred by the Rooker Feldman
Doctrine and the express language of 42 U.S.C. 1983 as amended in 1996. As
argued in the Appelants Opening Brief and as not controverted by plaintiffs,
KDHE Secretary Robert Moser had nothing to do with issuance of marriage
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licenses; there was no basis in fact or law for entering a preliminary injunction
against Dr. Moser in this case.
1. FOR THE REASONS ASSERTED IN THE OPENING BRIEF, NOT
CONTROVERTED IN THE RESPONSE, THE PRELIMINARY
INJUNCTION WAS BARRED BY THE ROOKER-FELDMAN
DOCTRINE AND BY THE EXPRESS TERMS OF 42 U.S.C. 1983
PROHIBITING PRELIMINARY INJUNCTIVE RELIEF AGAINST
JUDICIAL OFFICERS FOR JUDICIAL ACTS, WHICH, BASED ON
THIS RECORD, WAS THE CASE IN KANSAS.
As argued in the Appellants Opening Brief and as shown from the
uncontroverted facts of record in this case, which include the Affidavits of Clerks
Hamilton and Lumbreras as well as the decision of the Kansas Supreme Court in
State ex rel. Schmidt v. Moriarty, No. 112,590 (Kan. Nov. 18, 2014), at 4-5 (Doc.
59-6); Aplt. App. V.2, at 395-96), the applications of Kail Marie and Michelle
Brown and Donna DiTrani and Kerry Wilks were denied by or based upon legal
determinations of Chief Judges Robert Fairchild and Chief Judge James
Fleetwood, respectively. See Complt. ( Doc. 1), at 16-17, 19-21; Affidavit of
Bernie Lumbreras, at 4, 6 (Doc. 23-8); Affidavit of Douglas Hamilton, at 4, 6
(Doc. 23-7); Aplt. App. V.1, at 20-21, 255-60).
Applying law to fact, Chief Judge James Fleetwood of the 18th Judicial
District of Kansas personally informed DiTrani and Wilks that Kansas law did not
allow for the issuance of same-sex marriage licenses. (Complt. (Doc. 1), at 19;
Aplt. App. V.1, at 21). In the case of Marie and Brown, Chief Judge Robert
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Fairchild of the 7th Judicial District of Kansas had issued an Administrative Order
the previous day making the legal and judicial determination that same-sex
marriage licenses could not issue. (Complt. (Doc. 1), at 17; Aplt. App. V.1, at
20).

In the Administrative Order, which speaks for itself, Chief Judge Fairchild

engages in legal analysis when faced with the application of Thomas Tuozzo and
Rodd Hedlund, same-sex marriage applicants, to reach his determination that
same-sex couples are not legally entitled to a license under K.S.A. 23-2505(a)
(2014 Supp.). (Doc. 23-7, Aplt. App. V.1, at 257-58).
In terms of Defendant/Appellants Rooker Feldman argument, Chief Judge
Fairchilds and Fleetwoods respective determinations regarding same-sex
marriage license applicants legal entitlement to Kansas marriage licenses is
functionally the same as the determination of which review was sought in D.C.
Court of Appeals v. Feldman, 460 U.S. 462 (1983), i.e., whether bar applicants
were entitled to a license, which the Court found to be judicial in nature. Id. In
terms of Plaintiffs other argument that Rooker Feldman only applies to parties,
Marie, Brown,Wilks and DiTrani were certainly parties seeking a marriage license,
whose license was denied, and who are now seeking review of that denial,
although not through the jurisdictionally correct route under Feldman.
Hamilton and Lumbreras made no decisions with regard to the applications
of Marie/Brown or DiTrani/Wilks. The determinations being challenged were
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those of Chief Judges Fairchild and Fleetwood. Hence, the request for an
injunction against the Chief Judges decisions was barred by the Rooker Feldman
Doctrine and 42 U.S.C. 1983 under the arguments and authorities stated in the
Appellants Opening Brief. Acceptance of the Plaintiffs arguments on appeal
requires the Court to ignore the role of Chief Judges Fairchild and Fleetwood, their
respective legal determinations regarding same-sex marriage applications and the
orders they issued to Hamilton and Lumbreras in this case.
The Appellees Response Brief also hinges entirely on the erroneous
argument that the denial of Marie/Brown and Wilks, DiTranis applications was
administrative, ministerial or mechanical. In making this argument, Marie,
Brown and Wilks, DiTrani state that generally issuance of marriage licenses to
those legally entitled is a mechanical function. Appellees Br., at 13-14. In
October 2014, whether a same-sex applicant was legally entitled to a marriage
license in Kansas was anything but a mechanical function as the law in Kansas had
not been determined. As shown in the Affidavits of Hamilton and Lumbreras,
questions of legal entitlement are determined by judges, not clerks, and clerks had
been advised to make sure Judges were the ones making any determinations
regarding same-sex marriage applicants. (Hamilton Affidavit (Doc. 23-7), at 4;
Lumbreras Affidavit (Doc. 23-8), at 4, Aplt. App. V.1, at 256, 260; Memo to
Chief Judges (Doc. 23-2); Aplt. App. V.1, at 143-44).
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This is why Chief Judge Fleetwood personally spoke to Wilks and DiTrani
at the Sedgwick County Courthouse, why Chief Judge Robert Fairchild issued
Administrative Order 14-13 making this determination and giving orders to
Hamilton, and why Chief Judge Kevin Moriarty issued his Administrative Order in
Johnson County which was the subject of the mandamus action before the Kansas
Supreme Court. If issuance of same-sex marriage licenses in Kansas in October
2014 were truly ministerial, the Judges would not have been involved.
Indeed, in State ex rel. Schmidt v. Moriarty, the discussion of which is
relegated to a footnote in the Appellees Brief, the Kansas Supreme Court
expressly ruled that in issuing the Administrative Order authorizing and directing
his clerk to issue same-sex marriage licenses Judge Moriarty was performing a
judicial function stating:
In arguing that the temporary stay should be kept in place, the State contends
first that Chief Judge Moriarty was without jurisdiction to make a
determination whether a marriage license could be issued to a same-sex
couple in light of the states same-sex marriage ban. We disagree to the
extent that K.S.A. 2013 Supp. 23-2505(a) directs that[t]he clerks of the
district court or judges thereof, when applied to for a marriage license by
any person who is one of the parties to the proposed marriage and who is
legally entitled o a marriage license, shall issue a marriage license . . . .
(Emphasis added). So when Chief Judge Moriarty had a pending marriage
license application before him, he was faced with deciding whether the
applicants were legally entitled to that license. In doing so, he considered
the substantial federal authority existing at the time suggesting the Kansas
ban violated the United States constitution. Chief Judge Moriarty, as a
district court judges, was within his jurisdiction to weigh these authorities
and make a determination. See, e.g., Kitchen v. Herbert, 755 F.3d 1193 (10th
Cir.), cert. denied, 135 S. Ct. 265 (2014) (Utah law violates federal
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constitution); Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied 135 S.
Ct. 271 (2014) (Oklahoma law violates federal constitution). . . .

We emphasize we are not concluding that Chief Judge Moriarty was correct
in determining that the Kansas ban is unconstitutional and, therefore, that the
same-sex applicants were legally entitled to a marriage license. But making
that determination was within his jurisdiction as it is with all district court
judges under K.S.A. 2013 Supp. 23-2505(a), some of whom have reached a
different conclusion than Chief Judge Moriarty. . ..
(State ex rel. Schmidt v. Moriarty, No. 112,590 (Kan. Nov. 18, 2014), at 4-5, (Doc.
59-6); Aplt. App. V.2, at 395-96)).
This Court may and should defer to the Kansas Supreme Courts
determination of Kansas law as it controls the determination of the issue here and
means the preliminary injunction issued in this case violated the Rooker Feldman
Doctrine and 42 U.S.C. 1983. The Courts determination in Moriarty controls
over Judge Fairchilds reference to the word, administrative in his prior
Administrative Order, and over the general dicta from Cook v. City of Topeka, 232
Kan. 334, 654 P.2d 953, 957 (1982), also distinguished in the Appellants Opening
Brief, relied upon by both the district court and by Marie, Brown, DiTrani and
Wilks.
The general factual propositions stated in the Appellees Brief about
marriage licenses in general, including at pages 14-16, are unsupported by citation
to the record and do not apply to same-sex marriage licenses. As argued in the
Appellants Opening Brief and as not distinguished by Appellees, Oklahoma law
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differs from Kansas law regarding issuance of marriage licenses; this Courts
decisions in Bishop do not resolve the issue on this appeal regarding these facts
and Kansas law and are simply inapposite here.
Similarly, the law cited in the Appellees Brief is not on point, as much of it
is too general or pre-dates the 1996 Amendment to 42 U.S.C. 1983.

The

Appellees Brief ignores and does not distinguish this Courts decisions in
Buchheit v. Green, 705 F.3d 1157 (10th Cir. 2012) and Knox v. Bland, 632 F.3d
1290 (10th Cir. 2011), cited in the Appellants Opening Brief. Indeed, the primary
case relied upon by Marie, Brown, Wilks and DiTrani is a 1980 case, Supreme
Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719 (1980),
and a general reference to Ex parte Young, 209 U.S. 123 (1908), both of which
obviously predate the 1996 Amendment. The argument advanced by Marie, et al.,
that since Chief Judge Fairchild and Chief Judge Fleetwood were enforcing
unconstitutional laws, they lose their judicial immunity, is the precise reason for
the 1996 amendment, P.L. 304-17, 309, 110 Stat. 3847, and what Congress chose
to prohibit through the Amendment.
2. THERE IS NEITHER A LEGAL BASIS NOR A FACTUAL BASIS
FOR THE ISSUANCE OF A PRELIMINARY INJUNCTION
AGAINST DR. MOSER.
Plaintiff Appellees Brief misapprehends the substance of Dr. Mosers
appeal. This is not an appeal from a ruling on a motion to dismiss, it is an appeal
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from a preliminary injunction that has no factual or legal basis. Plaintiffs did not
offer any evidence concerning Dr. Moser in support of their motion, which
addressed only the role of Clerks Hamilton and Lumbreras in refusing to issue the
marriage licenses for which they had applied. See Appellants Appendix at pp. 5259. The uncontroverted evidence offered by Dr. Moser confirmed that his office
does not participate in the issuance of marriage license or in the rejection of samesex marriage applications. See Appellants Appendix at pp. 252-254.
Counsel for plaintiffs specifically stated in the injunction hearing that the
sole relief sought by way of preliminary injunction was the issuance of the
marriage licenses by the two court clerks, and that all relief related to recognition
of same-sex marriages would be taken up at a later date. See Appellants Appendix
at pp. 356-357, 362. Both the district courts order and the Appellate Brief of
Plaintiffs only address the involvement of Dr. Moser in responding to a
hypothetical future challenge relating to registration of Kansas marriages once they
have been licensed and fully performed. No such challenge appears in the
Complaint, or even in the subsequently filed First Amended Complaint, and no
evidence relating to that supposed challenge appears anywhere in the record.
Because the issues raised in this appeal relate to the factual record, and the
only factual information in the record contradicts the assumption that Dr. Moser
plays any role in denying marriage license applications to same-sex couples,
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Bishop v. Smith, 760 F.3d 1070 (2014) controls. On the record, it is undenied that
as an executive officer appointed under K.S.A. 75-5601 (2014 Supp.), Secretary
Moser has no supervisory authority over the judicial officials in Kansas who would
be called upon in appropriate cases to enforce the asserted rights of same-sex
couples.
As potential future records custodian for completed marriage certificates for
persons who, in this case, are voluntarily refusing to obtain a Kansas marriage
license, Dr. Moser has insufficient involvement in the issuance of marriage
licenses to be a defendant amenable to suit under the Eleventh Amendment. See
Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013); American Tradition Institute
v. Colorado, 876 F. Supp. 2d 1222, 1238-39 (D. Colo. 2012). Plaintiffs have
offered nothing but unsubstantiated argument in support of their contention that
Kansas court clerks act as employees, agents, or subordinates of the Kansas
Department of Health and Environment, an executive agency. As a matter of law,
every Kansas district court clerk is part of the Kansas Judicial Branch and is
subject to the supervision and control of a chief judge, not KDHE, in deciding
whether to issue a marriage license. See, e.g., Kan. Const. Art. 3, 1; K.S.A. 20101, K.S.A. 20-318 (2014 Supp); K.S.A. 20-319 (2014 Supp); K.S.A. 20-329
(2014 Supp); K.S.A. 20-343 (2014 Supp); K.S.A. 20-345 (2014 Supp).

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CONCLUSION
In the weeks following the issuance of the preliminary injunction in this case
the likelihood that Plaintiffs will ultimately prevail has become substantially
uncertain given the Supreme Courts Order granting certiorari in the DeBoer case.
DeBoer v. Snyder, No. 14-571, 83 USLW 3315, 2015 WL 213650 (U.S. Jan. 16,
2015). When Plaintiffs filed their Complaint they were so certain of the likelihood
of success in a federal forum that they ignored relevant procedural and
jurisdictional considerations. They failed to name the proper parties as defendants.
Even if ultimate judgment on the merits had been obviously inevitable, issuance of
this preliminary injunction still would not have been proper under the facts and the
law. Since the grant of the petitions for certiorari filed in the DeBoer case, the
prospect of ultimate success for Plaintiffs is not what it was prior to January 16,
2015.
For all of the reasons stated herein, the Defendants-Appellants Secretary of
Health and Environment Robert Moser and Douglas A. Hamilton, Clerk of the
District Court of the 7th Judicial District of Kansas and Bernie Lumbreras, Clerk of
the District Court of the 18th Judicial District of Kansas, request that the order
entering the preliminary injunction against them on November 4, 2014, be reversed
and the preliminary injunction vacated.
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Respectfully submitted,
OFFICE OF ATTORNEY GENERAL
DEREK SCHMIDT
By: s/ Steve R. Fabert
Steve R. Fabert, KS Sup. Ct. No. 10355
Assistant Attorney General
120 SW 10th, 2nd Floor
Topeka, Kansas 66612
Tel: 785-368-8420; Fax: (785)-291-3767
E-mail: steve.fabert@ag.ks.gov
Attorney for Defendant/Appellant Moser
OFFICE OF ATTORNEYGENERAL
DEREK SCHMIDT
s/ M.J. Willoughby
M.J. Willoughby, KS No. 14059
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 296-2215; Fax: (785) 291-3767
Email: MJ.Willoughby@ag.ks.gov
Attorney for Defendant-Appellant
Douglas A. Hamilton and Bernie Lumbreras

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CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(a)(7), the undersigned certify that the
brief complies with the type-volume limitation stated in the above-cited rule,
specifically, the brief contains 3, 372 words, as determined by Microsoft Office
Word 2007 word processing system, including parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii).
s/ Steve R. Fabert
Steve R. Fabert, KS No. 10355
Assistant Attorney General

CERTIFICATE OF PRIVACY REDACTIONS

As required by Fed. R. App. P. 25(a)(5) and 10th Cir. R. 25.5, the
undersigned attorney certifies that all required privacy redactions have been made.
s/ Steve R. Fabert
Steve R. Fabert, KS No. 10355
Assistant Attorney General

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that a copy of the foregoing REPLY BRIEF OF
APPELLANTS, as submitted in digital form is an exact copy of the written
document filed with the Clerk.
s/ Steve R. Fabert
Steve R. Fabert, KS No. 10355
Assistant Attorney General
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CERTIFICATE OF SCANNING
The digital submissions have been scanned for viruses with the most recent
version of the Sophos Protection, which is updated daily, and according to the
program are free of viruses.
s/ Steve R. Fabert
Steve R. Fabert, KS No. 10355
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that on behalf of Defendant/Appellant, the original and
seven written copies of the above and foregoing brief were served on March 19,
2015, by Federal Express, and an identical copy in digital form was sent the same
day by email addressed to:
Elisabeth Schumaker
Clerk of the Court
U.S. Court of Appeals
Byron White U.S. Courthouse
1823 Stout Street
Denver, Colorado 80237
esubmissions@ca10.uscourts.gov
I further certify that the above and foregoing was served on March 19, 2015,
by using the CM/ECF system to Counsel for Appellees:
Stephen Douglas Bonney
ACLU Foundation of Kansas
3601 Main Street
Kansas City, MO 64111
dbonney@aclukansas.org

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Mark P. Johnson
Dentons US, LLP
4520 Main Street, Suite 1100
Kansas City, MO 64111
Mark.johnson@dentons. com
Joshua A. Block
American Civil Liberties Foundation
125 Broad Street, 18th Floor
New York, NY 100004
jblock@aclu.org.
s/ Steve R. Fabert
Steve R. Fabert, KS No. 10355

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