A COFFIN-CORNER PUNT BY THE KANSAS SUPREME COURT The Kansas Supreme Courts lifting of a stay and defering its action until the conclusion of the federal court litigation, and deferring to the federal courts relative to issues of enforcement, is a classic example of a court saying we need this case like we need a hole in the head. Unless the SCOTUS says otherwise, it clears the way for gay marriages to take place throughout the state, although two judicial districts may not issue the licenses. Thus, the Kansas Supreme Courts further involvement in the issue, and its consideration of the mandamus action, will turn on issues about the efffect of a judgment (res judicata), and enforcement issues, and not the hot-button gay marriage issue. In essence, the state court decided to let the federal court take the heat. Mr. Schmidt appears to be headed for a loss on the mandamus issues, because the order states that the subject of the administrative order is within Chief Judge Moriartys jurisdiction, and that the unconstitutionality of the statute is a defense to the mandamus action. The next issue is for the federal court to decide whether its preliminary injunction is enforceable against other clerks of the state under FRCP 65(d)(2). The issue is whether Dr. Mosers significant involvement with the recognition of marriages in Kansas, and the provisions of KSA 23-2509 requiring Kansas district courts to comply with the specifications of the state forms, makes the preliminary injunction enforceable against other clerks as agents of Dr. Moser or as persons who are in active concert or participation with them. Interestingly, the Kansas Supreme Court has appeared to give individual Kansas district court judges have the power to determine this issue, in addition to the federal court; but they may take their cue from the Kansas Supreme Court and defer to the federal court. The order does not state that it is to be published (federal courts will sometimes publish orders), so it may not be regarded as precedent. This gets awkward for Mr. Schmidt, because his office is the attorney of record for all three of the defendants in federal court. FRCP 65(d)(2)(B). If the other clerks are not bound, then when the final judgment is entered against the defendants, as it will be, then all of the defendants and persons in privity are precluded from relitigating the issue in state court. Those who are not in privity with the federal defendants, however, are free to litigate in the state courts, unless the issue is resovled by SCOTUS, of course. The decisions of the lower federal courts are not binding on the Kansas courts. But Kansas courts may conclude, absent a decision to the contrary by SCOTUS, that the best course is to follow the federal courts.
Posted on: Wed, 19 Nov 2014 01:10:16 +0000
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