State v. Moriarty

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
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"(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.
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(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
/3/~
La'W10n R. Nuss
Chief Justice
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