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Marie v. Moser

United States District Court, D. Kansas

December 18, 2014

KAIL MARIE et al., Plaintiffs,
ROBERT MOSER, M.D. et al., Defendants.


DANIEL D. CRABTREE, District Judge.

Westboro Baptist Church ("WBC") has filed a Renewed Motion to Intervene as a defendant in this case (Doc. 53). WBC filed its first Motion to Intervene on October 26, 2014 (Doc. 19). And though the Court denied that motion (Doc. 35), it invited WBC to file an amicus brief. On November 22, 2014, plaintiffs filed their First Amended Complaint (Doc. 52), which includes new plaintiffs, new defendants, and asserts marriage recognition claims. WBC filed its Renewed Motion to Intervene in response to plaintiffs' First Amended Complaint. None of the existing parties filed a response to WBC's Renewed Motion to Intervene within the time limits imposed by D. Kan. Rule 6.1(d)(1). Thus, WBC's motion is ripe for ruling. After considering the arguments contained in its motion, the Court denies WBC's Renewed Motion to Intervene for the reasons explained below.


WBC is an independent church located in Topeka, Kansas. For nearly 25 years, WBC members have engaged in picketing, protesting, and other visible forms of public testimony against what they consider to be the "proud ruinous sins of this generation, " including homosexuality. WBC asserts an interest in preventing the State of Kansas from affording respect, dignity, and social approval to same-sex marriages. It also claims an interest in preventing the state of Kansas from requiring it to participate in and honor same-sex marriages.

A. Plaintiff's First Amended Complaint

On November 26, 2014, plaintiffs filed their First Amended Complaint, which added the following six plaintiffs. James Peters and Gary Morhman are a same-sex couple residing in Douglas County, Kansas. Mr. Peters and Mr. Morhman have been in a relationship for more than thirty years and entered a same-sex marriage under the laws of Iowa in 2010. Carrie Fowler and Sarah Braun are a same-sex couple residing in Jefferson County, Kansas. In June 2014, they entered into a same-sex marriage under the laws of Illinois. Darci Jo Bohnenblust and Joleen Hickman are a same-sex couple residing in Riley County, Kansas. On November 13, 2014, Ms. Bohnenblust and Ms. Hickman received a marriage license in Riley County, Kansas and married during a ceremony performed that same day.

Plaintiffs also named three new defendants in their First Amended Complaint: Nick Jordan, Secretary of the Kansas Department of Revenue; Lisa Kaspar, Director of the Kansas Department of Revenue's Division of Motor Vehicles; and Mike Michael, Director of Kansas' State Employee Health Plan. Plaintiffs presumably added the new parties to address standing issues on their broadened claims. In particular, they have added plaintiffs who claim to have standing to seek recognition of out-of-state same-sex marriages and defendants who arguably occupy state government positions responsible for administering the collateral rights and benefits that Kansas gives to couples in legally recognized marriages.

WBC argues that the First Amended Complaint confirms the theme of its original Motion to Intervene-namely, that same-sex marriage plaintiffs will continue to litigate until the rights they assert "lap over onto the churches of Kansas, including WBC, " and until same-sex couples "get the official sanction of the religious pillar of society." WBC argues that such an outcome would amount to an impairment of its protectable interest in religious expression, and, accordingly, it seeks to intervene as a defendant in this lawsuit under Fed.R.Civ.P. 24(a) and (b).

B. Intervention of Right

Rule 24 recognizes two types of intervention: intervention as a matter of right and permissive intervention. Intervention as a matter of right under Rule 24(a) is mandated when a federal statute gives the applicant an unconditional right to intervene or when the applicant satisfies each of four conditions: (1) the applicant has moved for intervention timely; (2) the applicant has a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant is situated such that the disposition of the action may impair or impede the party's ability to protect that interest; and (4) the applicant's interest is not represented adequately by existing parties. Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 90 (10th Cir. 1993). "Failure to satisfy any one of the requirements is fatal to the application, and [the Court] need not reach the remaining elements if one of the elements is not satisfied." Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). When it ruled on the first Motion to Intervene, the Court concluded that WBC had failed to carry its burden to show that the current defendants would not represent WBC's interest adequately, and, therefore, denied the motion without reaching the remaining factors. The Court concludes WBC has failed to show that this action has changed in a way that justifies a different ruling on its Renewed Motion to Intervene.

When this Court denied WBC's first Motion to Intervene, it found that the ultimate objectives of the existing defendants and WBC are the same-both seek to uphold Kansas' constitutional and statutory prohibitions against same-sex marriage. The Court noted that when a prospective intervenor shares an ultimate objective with the existing parties, a presumption of adequate representation arises. Hodes & Nauser, MDs, P.A. v. Moser, No. 2:11-CV-02365-CM-KMH, 2011 WL 4553061, at *3 (D. Kan. Sept. 29, 2011). The prospective intervenor must overcome this presumption by making a "compelling showing" to the contrary, which, the Court concluded, WBC had failed to do. WBC now makes several new arguments that the new claims and parties in the First Amended Complaint present new circumstances and they require the Court to permit WBC to intervene.

First, WBC clams that plaintiff's Amended Complaint presents a possibility of a broad continuum of outcomes, over which WBC and the existing defendants' interests might diverge. WBC presumably makes this argument because the Court distinguished New Mexico Off-Highway Vehicle Alliance v. United States Forest Serv. ("NMOHVA"), 540 F.Appx. 877, 878 (10th Cir. 2013) on this basis when it denied WBC's first Motion to Intervene.

[I]n NMOHVA, there existed the possibility that the district court would enjoin or modify the Travel Management Plan only in part. Id. at 881-82. Here, there is not a continuum of possible outcomes along which WBC's interest and the existing defendants' interest may diverge. Rather there are only two possible outcomes: either the Court permits Kansas to continue enforcing its same-sex marriage ban, or the Court enjoins Kansas from enforcing the ban. WBC and the existing defendants both seek the former result.

Doc. 35 at 6. WBC has not persuaded the Court that this case is any more similar to NMOHVA simply because plaintiffs have added recognition claims. The scope of relief sought by plaintiffs may have expanded, but there are still only limited outcomes that could result from this litigation: either the defendant state agencies must recognize plaintiff's same-sex marriages, or they may continue to enforce Kansas' prohibition on recognizing same-sex marriages. As the Court explains below, none of ...

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