1 Booz 005 ad IN THE SUPREME COURT OF KANSAS FILED NOV 10 204 Hearing cae oy orate a STATE OF KANSAS ex rel. DEREK SCHMIDT, Attomey General, Petitioner, Original Action No, 112,590 KEVIN P. MORIARTY, Chief Judge, Tenth Judicial District and SANDRA McCURDY, Clerk of the District Court, Tenth Judicial District, BY FACSIMILE Respondents. MINATION OF TEMPORARY STAY MOTION FOR IMMEDIA’ Respondents Kevin P. Moriarty, Chief Judge, Tenth Judicial District and Sandra McCurdy, Clerk of the District Court, Tenth Judicial District, by and through their counsel, hereby move this Court for the immediate termination of this Court’s October 10, 2014 temporary stay issued against the enforcement of Amended Administrative Order No. 14-11. In support of this motion, Respondents state: 1. On Tuesday, November 4, the United States District Court of the District of Kansas in Marie v. Moser, et al., No, 14-cv-02518 (D. Kan. Oct, 10, 2014), entered a preliminary injunction prohibiting the defendants in that case from “enforcing or applying Article 15, Section 16 of the Kansas Constitution and K.S.A. § 23-2501, and any other Kansas statute, law policy or practice that prohibits issuance of marriage licenses on the basis that applicants are members of the same sex.” Marie, Oct. 10, 2014 Slip. Op. (D. Kan.) at 38. 2. The federal district court stayed this preliminary injunction until 5:00 p.m. (CST) on Tuesday, November 11, 2014 to “permit adequate time for defendants to appeal” from the Motion for Immediate Termination of Temporary Stay ‘State ex. rel Schmidt v. Moriarty, Orig, Action No, 112,590 W,S4% &s,11/10/2014 12:10 FAX 1 003/008 | temporary injunction and “try to convince the Tenth Circuit that it should stay the Court’s preliminary injunction for a longer period.” Id 3. The Kansas Attorney General, acting on behalf of the defendants in Marje, in fact, did appeal and sought a stay from the Tenth Circuit Court of Appeals. 4 On Friday, November 7, 2014, the Tenth Circuit Court of Appeals deniel the Marie defendants" request for an emergency stay concluding, “that defendants have failed to make the showings necessary to obtain a st Marie v. Moser, Nov. 7.2014 Slip Op. |(10” Cir) at 2. 5. Thus, on Tuesday November 11, 2014 at 5:00 p.m., the United States District Counts injunction will take effect and the defendants in Marie will be prohibited from énforcing Kansas’ bans against same-sex marriage because, as the Tenth Circuit has determined in in Kitchen v. Herbert, 755 F-3d 1193 (10" Cir. 2014) and Bishop v. Smith, 760 F.3d 1070 (10 Cir. 2014), those bans violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 6. Amended Administrative Order 14-11 directs that marriage licenses be issued to same-sex applicants in the Tenth Judicial District who are otherwise lawfully entitled t6 receive a license under K.S.A, 23-2505. This Court’s temporary stay of Administrative Order 14-11 is inconsistent with the directive of the United States District Court for the District of Kansas and the Tenth Circuit. Dissolving the temporary stay order during the consideration of the Attorney General’s Mandamus Petition would harmonize this Court's approach with that of the federal courts that have directly addressed the constitutional defects of the same-sex marriage bans. WHEREFORE, Respondents pray that this Court immediately dissolve its temporary stay as to the enforcement of Administrative Order 14-11. 2 ‘Motion for Immediate Termination of Temporary Stay ‘State ex. rel Schmidt v, Moriarty, Orig, Action No. 112,590/10/2014 12:10 FAX 1 Boosvoos tides ithropgaze. Carrie E. Josserand KS #18893 gjosserand@lsthropgage.com Building 82, Suite 1000 10851 Mastin Boulevard Overland Park, Kansas 66210-1669 Tel: (913) 451-5100; Fax: (913) 451-0875 ATTORNEYS FOR RESPONDENTS 3 Motion for Immediate Termination of Temporary Stay ‘Sate ex. rel Schmidt v. Moriarty, Orig, Action No, 112,590