State v. Moriarty

• Court: Court of Appeals of Kansas
• Decided: October 10, 2014
• Docket: 112590
• Status: Published

Opinion

TN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,590

STATE OF KANS!\S ex rel. DEREK SCHMIDT, ATTORNEY GE RAL, Pelirioner,

v.

KEVfN P. MORIARTY, CHIEF JUDGE, TENTH JUDlCIAL DISTRICT,

Al\D SANDRA MCCURDY, CLERK OF THE DISTRICT COURT,

TENTH JUDICIAL DISTRICT,

Respondents.

ORDER

This original action was filed October 10, 2014, by petitioner Attorney General Derek Schmidt, alleging that respondent Chief Judge Kevin P. Moriarty of the Tenth Judicial District exceeded his administrative authority and contravened Kansas constitutional, statutory, and cornman law by issuing Amended Administrative Order 14-11. This Order penni-ned marriage licenses to be issued to same-sex couples. Respondent Sandra McCurdy is the Clerk of the District Court in the Tenth Judicial District. Her office is responsible for complying with Amended Administrative Order 14-11 in the acceptance of applications for, and issuance of, marriage licenses.

In the Attorney General's petition, he seeks the following relief "on an expedited basis":

"Ca) An order directing the Respondents to immediately cease from issuing marriage applications or licenses to same gender couples in contravention of existing Kansas law; "Cb) AperemplOlY vvrit of mandamus barring the Respondents from following or othenvise implementing Administrative Order 14-1 1; "(c) An order vacating Administrative Order 14-11 and declaring it null and void; and

1 "(d) Such other and further relief as the Court deems just and proper attributable to Respondents' failure to follow the law." (Emphases added.)

The court has carefully reviewed the Attorney General's petition and memorandum in support. Given the nature of his claim-based in part as it is on what he believes to be inconsistent practice among the state's 31 judicial districts-i t is appropriate that jurisdiction remain in thi S COlirt. Relief is not avai lable in the district court. See Supreme Court Rule 9.01 (b) (2013 Kan. Ct. Rule Annot. 82).

On the Attorney General's petition and memorandum, we do not discern a need for an immediate or peremptory grant of relief under K. S.A. 60-802(b), nor for an ex parte grant of relief under Supreme Court Rule 9.01(c)(2). Simply put, the Attorney General's right to reliefon the merits is not clear, nor is it apparent per the Rule "that no valid defense to the petition can be offered," given the interpretation and application of the United States Constitution by panels of the United States Tenth Circuit Court of Appeals. See Bishop v. Smirh, 760 FJd 1070 (10th Cir. 2014); Kirchen v. Herberr, 755 F.3d 1193 (lOth Cir. 2014).

Nevertheless, in the interest of establishing state\vide consistency, we grant the Anorney General's alternative request, advanced in his memorandwl1, for a temporary stay of Chief Judge Moriarty's Amended Administrati ve Order 14-11, insofar as this Order allows issuance of marriage licenses. Applications for mamage licenses may continue to be accepted during the period of the stay. The stay shall remain in force pending further order by th is COlirt.

In addition, we order the follo\\ring:

(1) Respondents shall file a response to the petition by 5:00 p.m. on October 21, 2014. Under Supreme Court Rule 9.0 I(c)(3)(B), the respondents may file a joint response. But Chief Judge Moriarty also remains free to invoke Supreme Court Rule 9.0 1(c)(3)(C), which provides that he may decide not to appear in this proceeding.

2 (2) Any additional briefing the parties wish to submit on any currently pending issue must be filed by 5:00 p.m. on October 28,2014. The currently pending issues include but are not limited to:

(a) \\rhether Chief Judge Moriarty possessed authority to issue

Amended Admin.istrative Order 14-11;

(b) \Vhether Chief Judge Moriarty was correct in asserting that the interpretations and appl ications 0 f the United States Consti turion by panels of the Tenth Circuit Court of Appeals are supreme and therefore modify any Kansas state constitutional, statutory, or common law ban on same-sex marriage; and

(c) Even if the Tenth Circuit rulings on federal constitutional law are supreme, whether Kansas' state constitutional, statutory, or common law bans on same-sex marriage are pennissible under the United States Constitution.

(3) No extensions of the filing deadlines setout above in (1) and (2) v,rill be considered or permined.

(4) Counsel for any party appearing in this action must appear for oral argument at 10:00 a.m. on November 6, 2014. Each side will be allowed 15 minutes of argwnent. Should both respondents appear, they will be responsible for allocating the 15 minutes allowed to their side of the case between them. The court will not entertain any motion for a continuance of this sening.

IT IS SO ORDERED THrs rOth day OfOct~ A La'W10n R. Nuss /3/~ Chief Justice