AL/14/2014 12:92 FAX i 102/008 FILED IN THE SUPREME COURT OF KANSAS Nov 14 2014 HEATHER 1, SMITH STATE OF KANSAS ex rel. DEREK * (CLERK OF APPELLATE COURTS SCHMIDT, Attomey General,” Petitioner, ‘IGE } Original Action No. 112,590 KEVIN P. MORIARTY, Chief Judge, Judicial District and SANDRA McCURDY, Clerk of the District Court, Tenth Judicial District ) *) BY FACSIMILE d ) Respondents. RESPONDENTS” RESPONSE TO ORDER TO SHOW CAUSE Respondents, Kevin P. Moriarty, Chief Judge, Tenth Judicial District and Sandra McCurdy, Clerk of the District Court, Tenth Judicial District, offer the following response to the question posed in this Court's November 5, 2014, Order to Show Cause. L Whether the Court's October 10, 2014 Order Temporarily Staying Administrative Order No, 14-11 Should Remain in Full Force Pending Final Resolution of the Federal Matter? This Court should lifi its stay of the enforcement of Administrative Order No. 14-11. As Respondents argued in their Motion for Immediate Termination of Temporary Stay, filed on November 10, 2014, the United States District Court of the District of Kansas in Marie v. Moser, et al,, No. 14-cv-02518 (D. Kan. Nov. 4, 2014), entered a preliminary injunction prohibiting the enforcement of the Kansas statutory and constitutional bans on same-sex marriage. Marie, November 4, 2014 Slip. Op. at 38. That same day, Justice Sonia Sotamayor of the United States Supreme Court issued a temporary stay on the issuances of marriage licenses in Kansas to same-sex couples to allow for consideration of the State's appeal for a longer stay of Judge Crabtree's ruling. Marie, Nov. 10, 2014. On November 12, 2014, the United States Respondents" Response to Order lo Show Cause State ex, rel Schmidt». Moriarty, Orig. Action No, 112,590 nasisa9y111/14/2014 12:33 FAK 1 @ovs/o08 Supreme Court issued an order lifting that temporary stay, allowing Judge Crabtree’s ruling to take effect, and permitting same-sex couples 10 apply for and receive marriage licenses in the State of Kansas, Accordingly, to the extent that there was ever any doubt whether Judge Crabtree’s order would be effective during appeal, that doubt has been removed, This Court’s October 10, 2014 temporary stay prohibits the enforcement of Administrative Order No, 14-11, When this Court entered the stay of Judge Moriarty’s order, no federal court had acted on Kansas" same-sex marriage ban. As of today, however, the Tenth Judicial District is the only judicial district in the State of Kansas where marriage licenses cannot be issued to same-sex couples. The October 10, 2014 temporary stay is now inconsistent with the directives of the United States District Court for the District of Kansas, the Tenth Circuit, and now the United States Supreme Court ‘As Respondents argued in their Brief in Response to this Mandamus Action (Resps.’ Br. at 15-23), Kansas’ prohibitions on same-sex marriage violate the fundamental right to marry guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Marie, Slip. Op. at 33; see also, Kitchen v. Herbert, 755 F.3d 1193 (10" Cir, 2014), ‘There is no just reason to continue to deprive the rights of Kansas citizens to marry the person of their choice. The Court's October 10, 2014 stay on Administrative Order 14-11 should be lifted and released immediately so that the rulings are consistent in the State of Kansas. 1, Whether this Court’s Consideration of the Mandarus Action Otherwise Should be Stayed Pending Final Resolution of the Federal Matter? So long as the stay is lifted, Respondents agree that this mandamus action should be stayed pending final resolution of the Marie case to ensure consistent application of the law. 2 ‘Respondents’ Response to Order to Show Cause Suave ex. rel Schmidt v. Moriarty, Orig. Action No. 112,590 aa0sieavtAiy14/2014 12:34 FAR 1 Boosooe ‘The Attomey General argued in the Marie case that the federal district court should abstain its decision on the constitutionality questions until the conclusion of this matter. Judge Crabtree considered, but declined abstention, Marie, Slip. Op. at 18-28. All indicetions are that the issue will be resolved in a definitive manner by the Marie case. It is inconsequential for the Attomey General to argue to this Court that the federal court should abstain, The federal court has made its decision to proceed. While there is no requirement that this Court stay its proceedings to wait for the decision in the Marie case, the practicalities suggest that a stay would be the prudent choice. The Tenth Circuit has refused to disturb Judge Crabtree's rulings, The Attorney General has asked for a review by the full Tenth Circuit, Thus, the Marie case is currently postured for a higher court decision to rule on the constitutionality of the Kansas bans on same-sex marriages. Because Respondents have raised the constitutional issues in response to the Petition for Mandamus, this Court is correct that it would be required to consider the same issues in reaching a decision in this case And while Respondents believe that the Due Process and Equal Protection analysis applied by the Tenth Circuit in Kitchen and numerous other Courts (see Resps.’ Br. at 18-20), which was utilized by Judge Moriarty in issuing Administrative Order 11-14, is correct and will prevail, the possibility does exist that the courts could reach conflicting judgments, which would create undesired uncertainty. See Schaefer v. Milner, 156 Kan. 768, 75 (1943)(courts should avoid conflict in the execution of judgments by independent courts). ‘The present situation in Kansas is an example of the potential for inconsistent judgments, ‘This Court certainly has the power and the discretion to stay these proceedings until such time that the Marie case reaches a definitive conclusion on the constitutional 3 sues. See Henry Respondents’ Response to Order to Show Cause ‘Sate ex. ref Schmidt v, Moriarty, Orig, Action No. 112,890 masisaotLU/14/2014 12:34 PAK 1 @oos/ooe v. Stewart, 203 Kun. 289, 292, 454 P.2d 7, 10 (1969)(“There is no question but that a state court has the power to stay proceedings therein until determination of an action pending in a federal court sitting in the sume state.") As the Marie case has already addressed the constitutional issues, it would be prudent to stay these proceedings in mandamus until that ease reaches its final conclusion. Carrie E. Josserand KS #18893 josserand@lat om Building 82, Suite 1000 10851 Mastin Boulevard Overland Park, Kansas 66210-1669 Tel: (913) 451-5100; Fax: (913) 451-0875 ATTORNEYS FOR RESPONDENTS: Respondents’ Response to Order to Show Cause ‘State ex. rel Schmidt. Mortarty, Orig. Action No. 112,590 208192941,11/14/2014 12:38 FAX 1 Bovs/o08 CERTIFICATE OF SERV! I certify that a true and correct copy of the above and foregoing was sent via First Class United States mail, postage prepaid, on November 14, 2014, to: Steve R. Fabert Offfice of the Attorney General, Derek Schmidt 120 S.W. 10th Ave. Topeka, KS 66612, Attorney for Petitioner; and David J. Brown The Law Office of David J. Brown, LC 1040 New Hampshire Suite 14 7 Lawrence, Kansas 66044, “I Attomeys for Amici : ‘An Attorfey for Respondents Respondents’ Response to Order to Show Cause ‘State ex. rel Schmidt v. Moriarty, Orig. Action No. 112,590 aaosisasu