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) Case No. 14-CV-2518-DDC-TJJ
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 7
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 Revenue’s Division )
of Vehicles, and MIKE MICHAEL, in his official )
capacity as Director of the State Employee
Health Plan,
_________________________________________ )


Defendants Nick Jordan, Lisa Kaspar, and Mike Michael, named in their respective
official capacities, hereby move for dismissal of all claims asserted against any of them in the
First Amended Complaint for lack of subject matter jurisdiction and/or failure to state a federal
claim on which relief may be granted.

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In particular, dismissal is required for the following reasons:
1. The claims relating to personal income taxes are barred by the Eleventh Amendment,
by the Tax Injunction Act and/or by principles of comity;
2. The claims relating to names on drivers’ licenses do not state a federal question and
are barred by the Eleventh Amendment;
3. The claims relating to the administration of the Kansas State Employee Health Plan
do not state a federal question and are barred by the Eleventh Amendment;
4. The claims relating to recognition of out-of-state marriages do not state a federal
question and are barred by Section 3 of the Defense of Marriage Act.
The claims asserted against these three defendants are all based upon the mistaken legal
assumption that every request made by a same-sex married couple gives rise to a federal cause of
action when it is denied by a person acting under color of state law. No such legal principle
exists. If any plaintiff believes that the State of Kansas has denied some privilege or benefit that
is potentially available under state law, the presumptively proper remedy is to pursue relief by
way of state administrative procedures and then resort to the state courts, if necessary. A federal
court is not an available forum in which to litigate the details of state employee health insurance
plans, state personal income tax filing procedures, and drivers’ license disputes.
The original complaint was filed by four unmarried plaintiffs who sought to 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.

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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. (Doc. 52, paragraph 8).
Plaintiffs Fowler and Braun allege that they were married in the state of Illinois in 2014. (Doc.
52, paragraph 9). Plaintiffs Bohnenblust and Hickman allege that they were married in Kansas
during November of 2014. (Doc. 52, paragraph 10).
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.
Plaintiffs Peters and Mohrman complain that Mohrman’s employer, the University of
Kansas, refused to add Peters to Mohrman’s state employee health insurance because Peters does
not meet the definition of a “spouse” under the eligibility rules governing the health care plan.
(Doc. 52, paragraphs 31-33). Plaintiffs Peters and Mohrman also complain that they are not
allowed to file a joint Kansas personal income tax return because their marriage is not
recognized under Kansas law. (Doc. 52, paragraphs 34-36).
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. (Doc. 52, paragraphs 38-42). Fowler and Braun state no other
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. (Doc. 52, paragraphs 44-46). 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

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Bohnenblust and Hickman also complain that Bohnenblust’s employer, Kansas State University,
refused to add Hickman as a spouse on Bohnenblust’s health insurance due to the limitation of
spousal coverage to opposite-sex spouses. (Doc. 52, paragraphs 47-48).
The First Amended Complaint relies upon alleged violations of plaintiffs’ liberty rights
under the Fourteenth Amendment for federal question jurisdiction. The new defendants are not
alleged to have interfered with any property right protected by state or federal law. No
deprivation of procedural due process by any of the newly added defendants is alleged. No
federal statute is relied upon as a source of plaintiffs’ alleged substantive due process rights. The
sole federal statute mentioned is 42 U.S.C. § 1983. No identified statute or regulation
administered by the newly added defendants is expressly challenged by the First Amended
Complaint as unconstitutional. The First Amended Complaint includes no constitutional
challenge to 28 U.S.C. § 1738C. No violation of any state law is alleged in the First Amended
Complaint, and no diversity of citizenship is alleged.
The First Amended Complaint sets forth no cognizable federal cause of action against
defendants Jordan, Kaspar, or Michael. The liberty protected by the Fourteenth Amendment does
not include the right to be subjected to income taxation as a married person, or the right to
receive health insurance benefits for an alleged spouse, or the right to choose the name that
appears on a drivers’ license. Even if the scope of liberty could be stretched to include those
aspects of governmental regulation, the Fourteenth Amendment would require only procedural
due process to restrict or deny these rights. Kansas law affords enough procedural due process to

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meet the requirements of the Fourteenth Amendment. If plaintiffs are dissatisfied with the way
they have been treated with respect to taxation, health insurance, and drivers’ licenses, their
remedy is under state law not federal. Without a plausible claim that federal rights of plaintiffs
are being violated by these defendants, this Court has no subject matter jurisdiction.
This motion will not address the viability of plaintiffs’ contention that same-sex partners
have a constitutional right to marry in Kansas despite the constitutional, statutory, and public
policy prohibitions applicable to such relationships in Kansas. This issue apparently will be
decided by the United States Supreme Court before July of 2015. See DeBoer v. Snyder, 83
USLW 3315, 2015 WL 213650 (U.S. Jan. 16, 2015). Without such a constitutional right all
claims by all plaintiffs obviously fail on the merits. Rather than speculating about the outcome of
the DeBoer litigation, this motion will address only the insufficiency of the allegations of the
First Amended Complaint which would prevent relief no matter what the outcome in that case
might be. By failing to brief the core issue on the merits defendants do not intend to concede its
merits, and they reserve the right to raise the ultimate decision in DeBoer as a complete defense
once it has been announced.
Not every claim of discrimination invalidates state regulations under a strict scrutiny
analysis, just because the plaintiffs claim to be same-sex partners. Alleged discrimination based
on sexual orientation is subject only to a rational basis analysis in the context of law enforcement
and employment rights. See Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008); Walmer
v. U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir.1995), cert. denied 516 U.S. 974, 116 S. Ct.
474, 133 L. Ed. 2d 403 (1995); and Jantz v. Muci, 976 F.2d 623, 630 (10th Cir.1992), cert.
denied 508 U.S. 952, 113 S. Ct. 2445, 124 L. Ed. 2d 662 (1993). No Tenth Circuit case has

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concluded that statutes applying traditional marriage definitions violate the rational basis test.
See Kitchen v. Herbert, 755 F.3d 1193, 1223 (10th Cir. 2014) at footnote 11; Bishop v. Smith,
760 F.3d 1070, 1114 (10th Cir. 2014) separate opinion of Judge Kelly at footnote 2.
There is no federal constitutional right to be taxed as a married person rather than as a
single person. No right to equality of taxation under the Fourteenth Amendment has ever been
recognized, and states are allowed more freedom in crafting tax laws than they are permitted in
other areas of the law. See Madden v. Commonwealth of Kentucky, 309 U.S. 83, 87-88, 60 S.
Ct. 406, 408, 84 L. Ed. 590 (1940). The discriminatory state income tax laws of Kansas meet the
rational basis test imposed by the Fourteenth Amendment. See Peden v. State, 261 Kan. 239, 930
P.2d 1 (1996).
Not every grievance concerning deprivation of an alleged right gives rise to a federal civil
rights lawsuit. See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196-97,
109 S. Ct. 998, 1003-04, 103 L. Ed. 2d 249 (1989). The First Amended Complaint assumes that
there is a constitutional right to receive state-supported medical insurance. This assumption is
legally mistaken. There is no valid federal statutory right to obtain spousal health insurance
benefits from a nonconsenting state. See discussion in Nat'l Fed'n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566, 183 L. Ed. 2d 450, (2012). The mechanics of the KSEHCP are set forth in
K.S.A. 2014 Supp. 75-6501, et seq., including the fact that it is funded by the State of Kansas.
The plan is obviously a governmental plan that is exempt from ERISA. The First Amended
Complaint does not assert that the Plan is not being administered in accordance with its black
letter provisions, or in violation of any applicable state and federal statute or regulation.
No federal statute or constitutional provision requires a state to give effect to marriages

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entered into in another state. States are expressly authorized to deny effect to out-of-state
marriages under 28 U.S.C. § 1738C. The marriage laws of Kansas violate no constitutional
principle by refusing to give effect to the domestic relations laws of other states, according to In
re Estate of Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001), aff'd in part, rev'd in part, 273
Kan. 191, 42 P.3d 120 (2002). If a constitutional right to full faith and credit is to be found, it
will be announced by the United States Supreme Court this term. See DeBoer v. Snyder, 83
USLW 3315, 2015 WL 213650 (U.S. Jan. 16, 2015).
There is no federal right, whether statutory or constitutional, to the issuance of a drivers’
license in the name of the licensee’s preference. See Jorgensen v. Larsen, 930 F.2d 922, 1991
WL 55457 (10th Cir. 1991); Brown v. Cooke, 362 F. App'x 897, 2010 WL 227574 (10th Cir.
2010). Recognition of a constitutional right to select a name of choice to appear on a drivers’
license would require invalidation of the Real ID Act, 49 U.S.C. § 30301, et seq.
Kansas law provides adequate procedural safeguards against arbitrary decisions
concerning state income taxes, denial of drivers’ licenses, and state health insurance benefits. All
of these areas of state law are subject to the Kansas Judicial Review Act, K.S.A. § 77–601, et
seq., whose procedures are adequate to protect procedural due process rights. See Columbian
Fin. Corp. v. Stork, No. 14-2168-SAC, 2014 WL 6472862 (D. Kan. Nov. 18, 2014). There is a
separate statutory right to review of any claim of discrimination in the issuance of identity cards.
See K.S.A. 75-5158. There is a simple legal procedure for changing a name for all purposes,
including identification cards. See K.S.A. 60-1402. Any person divorced in Kansas also has a
statutory right to the restoration of his or her premarital name. See K.S.A. 23-2716. Plaintiffs are
therefore entitled to legal protection of all of their statutory and constitutional rights without any

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need to resort to federal court.
Federal courts are courts of limited jurisdiction. Lack of jurisdiction is presumed. The
burden of establishing federal court jurisdiction falls on the party asserting that jurisdiction
exists. See Devon Energy Production Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195,
1201 (10th Cir. 2012); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114
S. Ct. 1673, 1675, 128 L. Ed.2d 391 (1994). Invocation of the remedy of declaratory judgment
does not itself provide a basis for federal jurisdiction. See Cardtoons, L.C. v. Major League
Baseball Players Ass'n, 95 F.3d 959, 964 (10th Cir.1996).
A factual attack on the Court’s jurisdiction is appropriately made in the form of a motion
to dismiss, even though matters outside the complaint are relied upon. When a factual attack is
made against the Court’s subject matter jurisdiction, the Court is not required to assume the truth
of the complaint’s factual allegations. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d
1270, 1272 (10th Cir. 2012).
The Eleventh Amendment bars federal court lawsuits against a state or its officials acting
within their official capacities, with a narrow exception allowing for prospective injunctive relief
against individual officials for their ongoing violations of federal rights. See Ex parte Young,
209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). When a claim for injunctive relief is brought
against a state official who is not involved in the enforcement of an allegedly unconstitutional
statute, Eleventh Amendment immunity applies and requires dismissal of the claim. See Peterson
v. Martinez, 707 F.3d 1197, 1205-1206 (10th Cir. 2013).
No waiver of sovereign immunity under the Eleventh amendment has been alleged in the

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First Amended Complaint. No express abrogation of the state’s Eleventh Amendment immunity
concerning same-sex marriage disputes is alleged, probably because there is none. Rather than
seeking to require states to recognize same sex marriages, Congress has instead recognized the
lawful authority of states to refuse to recognize those marriages pursuant to 28 U.S.C. § 1738C.
This unchallenged statute defeats any suggestion that the State of Kansas violates a federally
protected right when it refuses to give effect to a same-sex marriage entered into in another state.
Since there is no federal right to interstate recognition of same-sex marriages, the Ex parte
Young exception cannot apply to these claims.
When the injunctive and declaratory relief sought are in substance a request that the
defendant state officials pay tax money to the plaintiffs, the Ex parte Young exception does not
apply and the Eleventh Amendment bars relief:
Plaintiff seeks a judgment which, although labeled as a declaratory judgment, in effect
would require the State of Kansas to pay money from its treasury to plaintiff for the
assessments plaintiff has performed. Plaintiff cannot avoid the provisions of the Eleventh
Amendment by seeking an injunctive and declaratory judgment against a state official, if
the judgment would be tantamount to an award of damages against the State of Kansas.
Green [v. Mansour], 474 U.S. at 73, 106 S. Ct. at 428 (1985) . . . (See Bock Associates v.
Chronister, 951 F. Supp. 969, 972 (D. Kan. 1996))
See also, Edelman v. Jordan, 415 U.S. 651, 675-77, 94 S. Ct. 1347, 1362, 39 L. Ed. 2d 662
Plaintiffs Peters, Mohrman, Bohnenblust, and Hickman seek relief requiring the State of
Kansas to pay the employer’s share of health care premiums and resulting claims for covered
medical care that the state would not otherwise be obligated to pay, under the terms of the
Kansas State Employee Health Care Plan. These claims are indistinguishable in practical effect
from a request for a money judgment for the same medical costs. The mechanics of the KSEHCP

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are set forth in K.S.A. 2014 Supp. 75-6501, et seq., including the fact that it is funded by the
State of Kansas.
Plaintiffs have not challenged the constitutionality of 28 U.S.C. § 1738C. As long as this
statute remains in effect, Kansas laws are not required by federal law to give legal recognition to
marriages entered into in another state. Plaintiffs have not taken the minimal procedural step
necessary to mount such a challenge by complying with Fed. R. Civ. P. 5.1, a failure that
prevents this Court from exercising jurisdiction to decide any constitutional challenge. See
Oklahoma ex rel Edmondson v. Pope, 516 F.3d 1214 (10th Cir. 2008).
The relief sought by plaintiffs Peters and Mohrman concerning the administration of
Kansas’ personal income tax laws is barred by the Tax Injunction Act, 28 U.S.C. § 1341
(“TIA”), which provides that “[t]he district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under state law where a plain, speedy and efficient
remedy may be had in the courts of such state.” This lawsuit seeks to “enjoin, suspend or restrain
the assessment, levy or collection of any tax,” within the meaning of the Tax Injunction Act.
Plaintiffs seek to obtain a federal court order compelling the Kansas Department of Revenue to
change its internal rules, for nothing more than the convenience of plaintiffs.
The TIA is intended by Congress as a broad jurisdictional barrier to federal court
interference with the administration of state tax systems. In Hill v. Kemp, 478 F.3d 1236, 1246
(10th Cir. 2007), cert. denied, 552 U.S. 1096 (2008), the Tenth Circuit discussed the TIA as


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In recognition of the breadth of the plain meaning of the term Congress employed, the
Supreme Court has expressly instructed that the TIA is to be read as a ‘broad
jurisdictional barrier’ and is ‘first and foremost a vehicle to limit dramatically federal
district court jurisdiction.’ Arkansas v. Farm Credit Servs. of Centr. Ark., 520 U.S. 821,
825, 826, 117 S. Ct. 1776, 138 L. Ed. 2d 34 (1997) (quoting Moe v. Confederated Salish
and Kootenai of Flathead Reservation, 425 U.S. 463, 470, 96 S. Ct. 1634, 48 L. Ed. 2d
96 (1976), and California v. Grace Brethren Church, 457 U.S. 393, 408-09, 102 S. Ct.
2498, 73 L. Ed. 2d 93 (1982)). . . .
The Supreme Court has also explained that the TIA serves an important role in the
smooth operation of our federal system. ‘The federal balance is well served,’ the Court
has written, ‘when the several States define and elaborate their own laws through their
own courts and administrative processes and without undue interference from the Federal
Judiciary. The States’ interest in the integrity of their own processes is of particular
moment respecting questions of state taxation. In our constitutional system, . . .[t]he
power to tax is basic to the power of the State to exist [and the] . . . [e]nactment of the
Tax Injunction Act of 1937 reflects a congressional concern to confine federalcourt
intervention in state government.’ Farm Credit Servs. of Centr. Ark., 520 U.S. at 826,
117 S. Ct. 1776 (internal citation and quotation marks omitted)).
478 F.3d at 1246-47. Cases are legion for the proposition that the TIA is a broad jurisdictional
bar intended to curtai1 federal court interference with state revenue collection procedures. See,
e.g, Ashton v. Cory, 780 F. 2d 816, 822-23 (9th Cir. 1986).
The Tax Injunction Act applies to actions seeking declaratory as well as injunctive relief
and applies to actions filed under 42 U.S.C. § 1983. National Private Truck Council, Inc. v.
Oklahoma Tax Comm’n., 515 U.S. 582, 586, 115 S. Ct. 2351, 132 L. Ed 2d 509 (1995) (Section
1983 does not provide a basis for injunctive or declaratory relief even in state court, citing the
“hands off” policy of noninterference with state taxation); Franchise Tax Board v. Alcan Alum.
Ltd., 493 U.S. 331, 340-41, 110 S. Ct. 661, 107 L. Ed. 2d 696 (1990) (Commerce Clause
challenge barred); Brooks v. Nance, 801 F.2d 1237, 1239 (10th Cir. 1986); Burress v. City of
Little Rock, 941 F.2d 717, 720-21 (8th Cir. 1991) (dismissing under TIA § 1983-based due
process and equal protection challenge to city’s imposition of sewer assessment fee).

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In holding that declaratory relief was also barred by the Tax Injunction Act, the Supreme
Court in California v. Grace Brethren Church, 457 U.S. 393, 408-10, 102 S. Ct. 2498, 73 L.
Ed. 2d 93

(1982), stated its reasoning as follows, citing the importance of state tax

Additionally, because there is little practical difference between injunctive and
declaratory relief, we would be hard pressed to conclude that Congress intended to
prohibit taxpayers from seeking one form of anticipatory relief against state tax officials
in federal court, while permitting them to seek another, thereby defeating the principal
purpose of the Tax Injunction Act: ‘to limit drastically federal district court jurisdiction
to interfere with so important a local concern as the collection of taxes.’ Rosewell v.
LaSalle National Bank, 450 U.S. 503, 522, 101 S. Ct. 1221, 1233, 67 L. Ed. 2d 464
(1981). . . .
The Tenth Circuit recently applied these considerations to reverse a preliminary injunction
entered by the district court against an official of the Colorado Department of Revenue in Direct
Marketing Association v. Brohl, 735 F.3d 904 (10th Cir. 2013). In that case, the Plaintiff, Direct
Marketing Association representing a group of businesses and organizations that market products
by means including the Internet, sought an order enjoining the State of Colorado from enforcing
state notice and reporting requirements on retailers who did not collect taxes on sales to
Colorado purchases, most of whom did business by mail or online. Id., at 906. The Marketing
Association alleged that the state’s requirements violated the Commerce Clause. Id. The district
court agreed and entered the requested injunction, permanently enjoining enforcement of state
requirements. Id. On appeal, the Circuit held that the Tax Injunction Act deprived the district
court of jurisdiction, and reversed. Id.
The Marketing Association objected to the State’s requirement that non-collecting
retailers notify Colorado purchasers that sales or use tax was due on certain purchases and that
the purchaser was required by state law to file a state or use tax return. Id., at 907. The

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Association also objected to a state law requirement that non-collecting retailers mail annual
notices to Colorado customers who purchased more than $500 in goods from them in the
preceding calendar year. Id., at 908. The third requirement was that the retailers report
information on their purchasers to the Colorado Department of Revenue. Id.
After citing general authorities, the Circuit noted that the TIA divests federal district
courts of jurisdiction over actions within the scope of the TIA which by its broad language
“prohibits federal courts from interfering with state tax administration through injunctive relief,
declaratory relief or damage awards.” Id., at 910 (citing California v. Grace Brethren Church,
457 U.S. 393, 407-08, 102 S. Ct. 2498, 73 L. Ed. 2d 93 (1982); Marcus v. Kansas Dept. of
Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999)). “The TIA ‘does not limit any substantive rights
to enjoin a state tax but requires only that they be enforced in a state court rather than a federal
court.’” Id. (citation omitted). The Association argued that the TIA did not preclude jurisdiction
because the Association itself was not the taxpayer seeking to avoid a tax and that it was
challenging the notice and reporting requirements, not a tax assessment. Id. The Circuit rejected
both arguments.
As to the first, the Circuit noted it had not interpreted the TIA as applying only to
taxpayer suits, citing Hill v. Kemp. Id., at 911. The Circuit noted the key concern of the TIA is
to “’shield state tax collections from federal court restraints.’” Id., at 912 (citing Hibbs v. Winn,
542 U.S. 88, 104, 124 S. Ct. 2276, 159 L. Ed. 2d 172 (2004) and Ashton v. Cory, 780 F.3d 816,
822 (9th Cir. 1986) (“The Supreme Court has repeatedly stated that the primary purpose of the
Tax Injunction Act was to curtail federal court interference with state revenue collection

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The Circuit rejected the Marketing Association’s argument that its lawsuit was not barred
because it was challenging the notice and reporting requirements rather than the underlying tax.
The Circuit found that the Association’s challenge would “restrain” Colorado’s efforts to collect
the tax. Id., at 913. The TIA restricts a federal court’s authority to “limit, restrict or hold back
the state’s chosen method of enforcing its tax laws and generating revenue. Id. Federalist
concerns, which the TIA seeks to avoid, arise not only when a state tax is challenged in federal
court, but also when the means for collecting a state tax are targeted there. Id. The TIA’s use of
the term, ‘restrain’ allows federal courts to weed out lawsuits, such as the DMA’s, that attempt to
undermine state tax collection.” Id. The DMA, according to the Court, challenged the way
Colorado chose to collect use tax and “‘cannot be avoided by an attack on the administration of
the tax as opposed to the validity of the tax itself.’” Id. (citing Brooks, 801 F.2d at 1239).
“The purposes of the TIA apply both to a lawsuit that would directly enjoin a tax and one
that would enjoin a procedure required by the state’s tax statutes and regulations that aims to
enforce and increase tax collection. Each action interferes with state revenue collection and falls
within the “traditional heartland of TIA cases’ that dismiss federal lawsuits to protect state
coffers.” Id., at 914 (citing Hill, 478 F.3d at 1250; Brooks, 801 F.2d at 1239, and Jerron W.,
Inc. v. State of Cal., State Bd. of Equalization, 129 F.3d 1334, 1337 (9th Cir. 1997)). The
Circuit’s decision also recognized and cited similar decisions from other courts stating a
challenge to collection methods rather than the taxes themselves is covered by the TIA. Id.
(citing Gass v. County of Allegheny, 371 F.3d 134 (3d Cir. 2004); Blangeres v. Burlington N.,
Inc., 872 F.2d 327, 328 (9th Cir. 1989) (per curiam); RTC Commercial Assets Trust 1995-NP31 v. Phoenix Bond & Indemn. Co., 169 F.3d 448, 454 (7th Cir. 1999)). After discussion at

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length, the Circuit rejected the Association’s claims that the Court’s interpretation of the TIA
was overly broad and found that Colorado law provided a remedy in terms of the TIA.
Plaintiffs’ objection to a policy guideline requiring same-sex couples to file as single and
their objection to having to fill out a worksheet (assuming for the sake of argument that were
required, which it is not where income is already separated in the federal filing with married
filing separate status), is the same as the Association’s challenge to the Colorado requirement at
issue in Brohl, a challenge to the manner in which the State of Kansas has chosen to administer
its tax laws, which is clearly within the bounds of the Tax Injunction Act.
The broad reach of the TIA and what is considered a “tax” for TIA purposes is illustrated
in Kemp. In that case, the Tenth Circuit affirmed a district court decision dismissing several
counts of a complaint bringing a First-Amendment-based challenge to a fee charged for specialty
license plates. Specifically, the Plaintiffs alleged that “those seeking a special license plate
expressing support for abortion rights are not treated equally to those who apply for the ‘Choose
Life’ or ‘Adoption Creates Families’ license plates.” 478 F.3d at 1241-42. After some analysis,
the Tenth Circuit had no difficulty affirming the district court’s finding that the challenge to the
fee was barred by the TIA. The Court held that the fee did in fact raise revenue, as opposed to
being a purely regulatory measure, which it stated was the primary test under the TIA. Id., at
1244-45. Here, as in Kemp, the genesis of the legislative policy allowing tax breaks for married
couples was with the State Legislature and the primary purpose of this scheme was to generate
revenue rather than to regulate. In fact, there is no allegation in the Amended Complaint that the
income tax filing guideline performs a regulatory purpose. See Kemp, at 1246.


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Also, as in Kemp, an injunction here would be particularly disruptive and contrary to the
purposes of the TIA. The Tenth Circuit found that “[t]o enjoin Oklahoma's entire specialty plate
regime (plaintiffs’ preferred remedy) or even to enjoin a portion of it (plaintiffs’ alternative
remedy), would deny Oklahoma the use of significant funds . . . Doing so would further operate
to deny these funds to and thus disrupt a variety of state initiatives . . . Simply put, the relief
sought here would implicate exactly the sort of federalism problems the TIA was designed to
ameliorate.” 478 F.3d at 1247.
Plaintiffs are challenging the process of taxation and how it is administered by state
officials. Although Defendants have located no federal court challenge quite like this one, courts
have held that federal court challenges to the process or procedure of tax assessment or
collection are barred under the TIA as they in essence, challenge the underlying tax and are
disruptive of state and local tax collection processes. See, e.g., Amos v. Glynn Co. Bd. of Tax
Assessors, 347 F.3d 1249, 1266 (11th Cir. 2003) (reversing district court’s denial of a motion to
dismiss a challenge to property tax assessment under the TIA).
With regard to the second part of the TIA analysis, it is clear that a plain, speedy and
efficient remedy may be had in the courts of the State of Kansas. As discussed by the Tenth
Circuit in Brooks v. Nance, 801 F.2d 1237, 1240 (10th Cir. 1986), the state processes are judged
under a fairly minimal and deferential standard: “if minimal procedural remedies are available
for the taxpayer to challenge the validity of the tax the federal court must abstain.” (citation
omitted). The Amended Complaint does not allege that Plaintiffs lack a remedy in the Kansas
courts. Nor does it allege that Plaintiffs have attempted to avail themselves of any remedies for
their perceived grievances in the state court system.

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Remedies are available. A challenge to the Notice at issue is currently underway in the
Shawnee County District Court, Nelson v. Kansas Dept. of Revenue, 2013 C 1,465, challenging
Notice 13-18 on grounds that the Notice violates Kansas statutes and that the Notice was enacted
without compliance with statutorily required procedure. It is entirely possible that the validity of
Notice 13-18 may be decided by a state court upon state grounds. Similarly, Plaintiffs could
challenge the guideline through state court including raising any state law issues as are being
raised there. State court judges are perfectly competent to handle such matters and make such
determinations. As in the Shawnee County case, Plaintiffs also could seek review of the
guideline under the Kansas Act for Judicial Review of Agency Action, K.S.A. 77-601, et seq.
(“KJRA”). The KJRA provides for review of “agency action,” which is defined to include “the
whole or a part of a rule and regulation or order.” K.S.A. 77-602(b)(1) (1997). The scope of
review available under the KJRA is extremely broad and includes review of the constitutionality
of a rule or regulation. K.S.A. 2014 Supp. 77-621(c)(1) The KJRA allows for broad relief,
including injunctive relief where appropriate. K.S.A. 77-610, 77-616, 77-622. Section 1983
actions are also possible in state court, subject to applicable restrictions imposed by law. See,
e.g., Brooks, 801 F.2d at 240.
In addition to the plenary review process available under the KJRA, Kansas statutes
provide a complete procedure for taxpayers to seek review of their tax assessments with an
administrative process with judicial review thereafter, with review of constitutional questions
preserved and addressed on appeal to the Kansas Court of Appeals. If a taxpayer’s return were to
be adjusted or a claim for refund were denied by the Director of Taxation, the taxpayer is
notified by notice as per K.S.A. 79-3226. As per K.S.A 79-3226, the taxpayer has 60 days from

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the notice in which to request an informal conference with the secretary of revenue or the
secretary’s designee, the Director of Taxation. The purpose of the informal conference is to
review and reconsider all facts and issues that underlie the proposed liability or proposed denial
of refund. The Secretary of Revenue or his designee, the Director of Taxation, shall hold an
informal conference with the taxpayer and shall issue a written final determination thereon. The
Secretary of Revenue or the Director of Taxation shall issue a written final determination within
270 days of the date of the request of informal conference unless the parties agree in writing to
extend the time for issuing such final determination. A final determination issued within or after
270 days constitutes final agency actions subject to administrative review by the state board of
tax appeals. In the event that a written final determination is not rendered within 270 days, the
taxpayer may appeal to the state board of tax appeals at any time provided that a written
extension of time is not in effect. Decisions of the state board of tax appeals are subject to review
by the Kansas Court of Appeals. K.S.A. 2014 Supp. 74-2426 ; K.S.A. 60-2101.
Courts in this District have dismissed similar claims under Section 1983, finding that the
remedies provided by Kansas law are adequate. See, e.g., Pacheco v. Wagnon, No. 08-3070,
2008 WL 755059 (D. Kan. Mar. 19, 2008) (denying a Section 1983 claim by an inmate against
the drug tax finding adequate procedures for relief were available before the State Board of Tax
Appeals, the predecessor entity to COTA); Oyler v. Finney, 870 F. Supp. 1018, 1021 (D. Kan.
1994), aff’d, 52 F.3d 338 (1995) [table] (dismissing a federal court challenge to a cigarette tax on
the basis of the availability of review on appeal and other avenues for review under state law).
The claims against Secretary Jordan based upon the State income tax filing process must be
dismissed for lack of jurisdiction under the Tax Injunction Act.

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If this Court were to somehow determine the TIA did not bar the claims against the newly
added defendants, principles of federalism and comity, which are broader than the TIA, would
require dismissal. The United States Supreme Court has recognized that comity and federalism
are even more expansive than the TIA and require dismissal where the TIA may not. Levin v.
Commerce Energy, Inc., 560 U.S. 413, 130 S. Ct. 2323, 176 L. Ed. 2d 1131 (2010); Fair
Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 107, 102 S. Ct. 177, 70 L. Ed.
2d 271 (1981). In affirming the district court’s decision denying the requested declaratory and
injunctive relief to independent marketers who claimed they were being subjected to
discriminatory state taxation, the Supreme Court in Levin reiterated that the comity doctrine is
alive and well, finding that claims of a discriminatory tax burden must proceed in state court. Id.,
at 417. According to the Court, comity predates and survives the enactment of the TIA in 1937.
See generally Levin, 560 U.S. at 421-33.
In the seminal case of McNary, the Supreme Court held that relief under Section 1983
was not available against a state tax system because of principles of comity and federalism
stating: “taxpayers are barred by the principle of comity from asserting § 1983 actions against
the validity of state tax systems in federal courts. Such taxpayers must seek protection of their
federal rights by state remedies, provided of course that those remedies are plain, adequate and
complete, and may ultimately seek review of the state decisions in this Court.” McNary, 454
U.S. at 116. The McNary Court began its discussion by revisiting Dows v. Chicago, 11 Wall.
108, 110, 20 L. Ed. 65 (1871), as recognition by the Court of the “important and sensitive nature
of state tax systems and the need for federal-court restraint when deciding cases that affect such

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systems.” 454 U.S. at 102. The Court noted after the advent of injunctive relief against state
officers under Ex parte Young, “Congress also recognized that the autonomy and fiscal stability
of the States survive best when state tax systems are not subject to scrutiny in federal courts,”
which led to the adoption of the TIA in 1937. Id., at 102-03. The Court noted that declaratory
and injunctive relief against state tax laws had long been barred under principles of comity. Id.,
at 103-05.
In extending the bar to claim for damage relief under Section 1983 where taxpayers
claimed that Missouri’s property tax laws deprived them of equal protection and due process
because of allegedly unequal taxation of real property, the McNary Court emphasized the special
reasons for federal court deference for state tax administration, citing the delicate balance
between federal authority and state governments, and the concomitant respect that should be
accorded state laws in federal court, quoting Matthews v. Rogers: “’[t]he reason for this guiding
principle [of equitable restraint] is of peculiar force in cases where the suit, like the present one,
is brought to enjoin the collection of a state tax in courts of a different, though paramount
sovereignty. The scrupulous regard for the rightful independence of state governments which
should at all times actuate the federal courts, and a proper reluctance to interfere by injunction
with their fiscal operations, require that such relief should be denied in every case where the
asserted federal right may be preserved without it.” Id., at 108 (quoting 284 U.S. 521, 525, 52 S.
Ct. 217, 76 L. Ed. 447 (1932)). The Court stated it would be contrary to “the scrupulous regard
for the rightful independence of state governments,” noted in Matthews to allow a taxpayer to
“hale state officers into federal court every time a taxpayer alleged the requisite elements of a §
1983 claim.” Id., at 115-16.

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The McNary Court, 454 U.S. at n.6, cited Justice Brennan’s concurring and dissenting
opinion in Perez v. Ledesma, 401 U.S. 82, 128, n.17, 91 S. Ct. 674, 699, n.17, 27 L. Ed. 2d 701
(1971), reasons which are particularly applicable here:
[t]he special reasons justifying the policy of federal noninterference with state tax
collection are obvious. The procedures for mass assessment and collection of state taxes
and for administration and adjudication of taxpayers’ disputes with tax officials are
generally complex and necessarily designed to operate according to established rules.
State tax agencies are organized to discharge their responsibilities in accordance with
state procedures. If federal declaratory relief were available to test state tax assessments,
state tax administration might be thrown into disarray, and taxpayers might escape the
ordinary procedural requirements imposed by state law. During the pendency of the
federal suit the collection of revenue under the challenged law might be obstructed, with
consequent damage to the State's budget, and perhaps a shift to the State of the risk of
taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on
questions of state tax law, which, like issues of state regulatory law, are more properly
heard in the state courts.
Accordingly, in Brooks v. Nance, 801 F.2d at 1240-41, the Tenth Circuit affirmed the district
court’s dismissal of a challenge to an Oklahoma cigarette tax based upon the TIA and the
alternative additional ground of comity, citing McNary and its strong reasoning against federal
court interference with matters of state taxation. The same result should obtain here. Courts have
denied similar challenges to state tax assessments, entities and procedures on the basis of comity.
See, e.g., In re Dept. of Energy Well Exemption Litigation, 746 F. Supp. 1462, 1469-70 (D.
Kan. 1990), aff’d, 945 F.2d 1575 (Temp. Em Ct. App. 1991) (dismissing Exxon’s suit against
the State of Alaska based upon a tax question related to a settlement agreement based upon Tax
Injunction Act, Eleventh Amendment immunity, comity and abstention); Home Life Ins. Co. v.
Board of County Comm’rs of Arapahoe County, 832 F. Supp. 309, 311-12 (D. Co. 1993)
(rejecting due process challenge to procedures for contesting tax assessments).


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All claims against defendants Jordan, Kaspar, and Michael should be dismissed for any
or all of the reasons discussed above. No federal question concerning any of these defendants
appears on the face of the First Amended Complaint. No violation of a federally protected right
has been alleged against any of these three defendants. Section 3 of the Defense of Marriage Act
and the Tax Injunction Act pose insurmountable obstacles even if some otherwise colorable legal
grievance could be read into the First Amended Complaint.
Respectfully submitted,
s/ Steve R. Fabert
Steve R. Fabert, #10355
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420; Fax: (785) 296-6296
Attorney for Defendants Jordan, Kaspar and

This is to certify that on this 20th day of January, 2015, a true and correct copy of the
above and foregoing was filed and served via the Court’s electronic filing system upon Plaintiffs’
counsel of record, Stephen Douglas Bonney, ACLU Foundation of Kansas, 3601 Main Street,
Kansas City, MO 64111, Mark P. Johnson, Dentons US, LLP, 4520 Main Street, Suite 1100,
Kansas City, MO 64111, and and Joshua
A. Block, American Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY
s/Steve R. Fabert
Steve R. Fabert
Attorney for defendants Jordan, Kaspar, and Michael