Case 3:13-cv-00946-JGH Document 1 Filed 08/16/13 Page 1 of 16 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

NO.________________

)

KIMBERLY FRANKLIN AND

)

TAMERA BOYD

)

)

Plaintiffs )

)

vs.

)

)

STEVE BRESHEAR, in his official

)

capacity as Governor of Kentucky;

)

and JACK CONWAY, in his official

)

capacity as Attorney General of

)

Kentucky; and SUE CAROL PERRY in )

her official capacity as

)

Shelby County Clerk )

)

Defendants )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION

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1. Plaintiffs bring this action to challenge the constitutionality of Kentucky’s laws excluding same-sex couples from marriage and voiding within the State of Kentucky the marriages of same-sex couples entered in other states or countries. KRS 402.040(2)
2. Plaintiffs Kimberly Franklin and Tammy Boyd are already married, having wed in Stratford, Connecticut on July 15, 2010. Kentucky does not recognize same-sex marriages. The Plaintiffs are treated as legal strangers in their home state of Kentucky.
3. The Plaintiffs all reside in Cropper Kentucky and have been residents of Shelby County for their entire lives, other than a brief period decades ago when they both resided in other States.
4. The Plaintiff Franklin works in loss prevention and the Plaintiff Boyd currently stays at home due to medical issues. They have known each other for over twenty-five years and been together for six years, having grown up in the same town. They jointly own their house. The situations faced by the adult Plaintiffs are similar to those faced by thousands of same-sex couples in Kentucky who are being denied the basic rights that are afforded to them by marriage.
5. The Plaintiff couple, like other committed couples, have cared for each other, supported each other, sacrificed for each other, and made plans for the future with each other. Like other couples who have made a lifetime commitment to each other, the Plaintiff couple are spouses in every sense, except that Kentucky law says even though they are married in another jurisdiction, their marriage is not honored here in Kentucky.
6. As the Plaintiff couple’s marriage is not recognized by the state, when they have to make medical decisions for each other, there is always the issue of their standing to make those decisions. As Kentucky law holds them to be legal strangers, Tammy could have been forced to leave Kim’s side during previous surgeries. This is just one example of how the Commonwealth materially impacts the Plaintiffs’ lives.
7. The Commonwealth’s exclusion of same-sex couples from recognition of their marriages adversely impacts the Plaintiffs and same-sex couples across the Commonwealth in other significant ways. It excludes them from the many legal protections available to spouses. For example, when one spouse dies, the surviving spouse may face serious financial hardship, including the loss of the family house, because he or she is denied the inheritance tax exemption provided to surviving spouses. Due to Kentucky’s refusal to

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allow or to recognize their marriages, same-sex couples are also denied many federal protections afforded to other married couples such as the ability to take time off work to care for a sick spouse under the Family Medical Leave Act and access to a spouse’s social security retirement benefits. 8. The exclusion from marriage undermines the Plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18 (U.S. June 26, 2013). Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells [same-sex couples and all the world - that their relationships are unworthy" of recognition. Id. at 2223. And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23. 9. The adult Plaintiffs are old enough to remember when a majority of states had laws prohibiting marriage between people of different races and when the Supreme Court struck down such prohibitions in Loving v. Virginia, 388 U.S. 1, 12 (1967), declaring: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." 10. Our courts and our society have discarded, one by one, marriage laws that violated the Constitution's mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves. History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is no different. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and the institution of marriage continues to thrive. 11. This is because, at its heart, marriage is both a personal and a public commitment of two people to one another, licensed by the state. Through marriage, the Commonwealth recognizes a couple's decision to establish a family unit together and support one another and any children of the marriage.

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12. Marriage contributes to the happiness of countless couples and their families and also contributes to society. Kentucky, like other states, encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations on married couples. In exchange, the Commonwealth receives the well-established benefits that marriage brings: stable, supportive families that contribute to both the social and economic well-being of the Commonwealth.
13. Kentucky's exclusion of same-sex couples from marriage infringes on the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because the exclusion does not rationally further any legitimate government interest. It serves only to disparage and injure lesbian and gay couples and their families.
14. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against Defendants. Specifically, Plaintiffs seek: (a) a declaration that the Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize marriages of same-sex couples validly entered into outside of the Commonwealth violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (b) a permanent injunction i) preventing Defendants from denying the Plaintiff couple and all other same-sex couples otherwise eligible to marry, the right to marry in the Commonwealth of Kentucky, and ii) directing Defendants to recognize the marriages of the Plaintiff couple and other same-sex couples validly entered into outside of Kentucky.
15. The Plaintiffs were legally married in another jurisdiction and their marriage should be recognized in Kentucky even if at the time of their marriage, it would not have been allowed in Kentucky. For example, Kentucky does not allow marriage by proxy, as Oklahoma does, but does not specifically void a marriage by proxy once it is legally performed in Oklahoma. If it did, it would be specifically listed in that statute, just as first cousin marriages are not only not performed here but are voided here, even when legal in the state they were performed in. This means that but for their gender, the

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Plaintiffs’ marriage would be recognized which is a violation of the Equal Protection Clause of the 14th Amendment.
THE PARTIES 16. Plaintiffs Kimberly Franklin (“Kim”) and Tamera Boyd (“Tammy”) have been together
for 6 years and have lived together for 6 years and live in Cropper, Shelby County Kentucky. Kim is a 47 years old and works in loss prevention and Tammy is a 46 year old who currently does not work due to medical issues. They have known each other for over 25 years and have been in a committed relationship for 6 years. 17. Kim and Tammy were married in Connecticut, as same-sex unions were not possible in the Commonwealth on July 15, 2010. 18. Kim and Tammy would like to have their marriage recognized in the Commonwealth of Kentucky in order to have the same legal protections opposite-sex married couples are afforded in the Commonwealth. They are unsure of how they might be treated in a time of crisis and therefore had a lawyer draw up powers of attorney for them. 19. This is a very real concern for them and caused undue stress on them when Kim was hospitalized as Tammy had no legal standing to remain in the room if the hospital personnel had asked her to leave. 20. In addition, if their marriage was an opposite-sex one, Tammy would be on Kim’s health insurance policy, but that is not option unless their marriage is recognized by the state of Kentucky. 21. Moreover, when either Kim or Tammy dies; they will have to pay an inheritance tax at a much higher rate than they would if their marriage was recognized by the Commonwealth. 22. Kim and Tammy want their marriage recognized by the Commonwealth because they are concerned their marriage is not treated as equal to opposite-sex marriages and that is shows that the Commonwealth values their family less and is less deserving of respect and support than other families.
DEFENDANTS

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23. Defendant STEVE BRESHEAR is the Governor of the Commonwealth of Kentucky. In his official capacity, he is the chief executive officer of the Commonwealth and is
responsible for the faithful execution of the laws of the Commonwealth of Kentucky, including the laws that exclude same-sex couples from marrying or having their
marriages recognized KRS 402.045(1) and the Kentucky Constitution, Section 233A. 24. Defendant JACK CONWAY is the Attorney General of the Commonwealth of Kentucky.
He is sued in his official capacity pursuant to the KRS 15.020. 25. Defendant SUE CAROLE PERRY is the Shelby County Clerk of the Commonwealth of
Kentucky. She is being sued in her official capacity as such overseas the issuing of marriage licenses and the enforcement of the regulations surrounding said licenses. She is being sued in her official capacity. She is responsible for preparing and approving the marriage license application and marriage license forms used in county offices across the Commonwealth. 26. All Defendants named above are, and at all relevant times have been, acting under color of state law, and are sued in their official capacities.
JURISDICTION AND VENUE 27. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343
because the suit raises federal questions under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 28. Venue is proper in the Eastern District of Kentucky under 28U.S.C. § 1391(b) because Defendants perform their official duties in this district.
FACTUAL BACKGROUND
29. The Commonwealth presently prohibits persons of the same sex from marrying by stating that “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky”. Kentucky Constitution, Section 223A, ratified November 2,

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2004, provides: Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. Marriage between members of the same sex is prohibited. See KRS 402.020(1)(d). KRS 402.040(1) provides that if a resident of this state marries in another state, the marriage will be valid in Kentucky if it was valid in the state where solemnized. However, KRS 402.040(2) provides: A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045. KRS 402.045(1) provides in part that, “A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.” KRS 402,045(2) provides that “Any rights granted by virtue of the [same sex] marriage, or its termination, shall be unenforceable in Kentucky courts.” Thus under these legislative enactments no county clerk, or deputy or assistant county clerk can legally issue a marriage license to applicants of the same sex. KRS 402.990(6)3 provides that any clerk who knowingly issues a marriage license to persons prohibited from marrying shall be guilty of a Class A misdemeanor and removed from office by the judgment of the court in which the clerk is convicted. 30. As a result, marriage in Kentucky is legally available only to opposite-sex couples. Same-sex couples may not marry in Kentucky and if they are married elsewhere, their marriages are not recognized in Kentucky.
Same-Sex and Opposite-Sex Couples are Similarly Situated for Purposes of Marriage
31. The Supreme Court has called marriage "the most important relation in life," Zablocki u. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks omitted), and an "expression [] of emotional support and public commitment."Turner v. Safley, 482 U.S. 78, 95 (1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two people...." Windsor, Slip. Op. at 20. This is as true for same-sex couples as it is for opposite-sex couples.

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32. Same-sex couples such as the Plaintiff couple are identical to opposite-sex couples in all of the characteristics relevant to marriage.
33. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together. Like opposite-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness.
34. Like opposite-sex married couples, same-sex married couples like the Plaintiffs Kim and Tammy are building a life together. 35. Same-sex couples seeking to marry are just as willing and able as opposite-sex couples to assume the obligations of marriage. 36. The Plaintiff couple and other same-sex couples in Kentucky, if permitted to marry, would benefit no less than opposite-sex couples from the many legal protections and the social recognition afforded to married couples. 37. There was a time when an individual's sex was relevant to his or her legal rights and duties within the marital relationship. For example, husbands had a duty to support their wives but not vice versa and husbands had legal ownership of all property belonging to their wives. But these legal distinctions have all been removed such that the legal rights and duties of husbands and wives are now identical.
The Exclusion of Same-Sex Couples from Marriage Causes Substantial Harm to Couples and Their Families
38. By preventing same-sex couples from marrying and refusing to recognize their marriages from others states, the Commonwealth’s law deprives them of numerous legal protections that are available to opposite-sex couples in Kentucky by virtue of their marriages. By way of example only: a. A married person is exempt from inheritance tax on property left to him by an opposite-sex spouse, including the spouse's share of the couple's home, and, thus, protected against economic distress or loss of a home because of an estate tax bill. KRS

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140.070. A same-sex surviving spouse or partner is denied this exemption and must pay a higher rate, which applies to non-family-members. KRS 392.020. b. The Commonwealth requires opposite-sex spouses to support one another financially. KRS 404.40. There is no support obligation for same-sex spouses or partners. 39. Same-sex couples are excluded from these and many other legal protections provided for married couples under Kentucky law. 40. The exclusion of same-sex couples from marriage also denies them eligibility for numerous federal protections afforded to married couples including in the areas of immigration and citizenship, taxes, and social security. Some of the federal protections for married couples are only available to couples if their marriages are legally recognized in the state in which they live. See, e.g., 42 U.S.C. § 416(h)(1)(A)(i) (marriage for eligibility for social security benefits based on law of state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same for Family Medical Leave Act). Thus, even Plaintiffs Kim and Tammy, who are already married, cannot access such federal protections as long as Kentucky refuses to recognize their existing marriage. 41. The exclusion from marriage also harms same-sex couples and their families in less tangible ways. 42. Although the Plaintiff couple is in a long-term committed relationship, they and other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples together during times of crisis or conflict. 43. Excluding same-sex couples from marriage also harms couples and their children by denying them the social recognition that comes with marriage. Marriage has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms "married" and "spouse" have universally understood meanings that command respect for a couple's relationship and the commitment they have made. 44. The exclusion from the esteemed institution of marriage also demeans and stigmatizes lesbian and gay couples and their children by sending the message that they are less worthy and valued than families headed by opposite-sex couples.

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45. The impact of the exclusion from marriage on same-sex couples and their families is extensive and real. The denial of the right to marry causes these couples and their families to suffer significant emotional, physical, and economic hardships. 46. The Plaintiff couple recognizes that marriage entails both benefits to and obligations on the partners and they welcome both.
Excluding Same-Sex Couples from Marriage Is Not Rationally Related to a Legitimate Government Interest,
-Let Alone Able to Withstand Heightened Scrutiny
47. As the evidence will show, the prohibition against marriage for same-sex couples in Kentucky is not closely tailored to serve an important government interest or substantially related to an exceedingly persuasive justification. In fact, as the evidence also will show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to any legitimate justifications that were offered in support of it when the Constitution was amended in 2004 or to any legitimate interest of the Commonwealth that Defendants might now offer as a basis for denying same-sex couples the freedom to marry in Kentucky. 48. When the Commonwealth enacted the 2004 amendment prohibiting marriage for same-sex couples, legislators in favor of the amendment relied on the fact that at that point there were not states that allowed same-sex marriages, so the amendment was couched as something just maintaining the status quo. There was no way for the drafters of the amendment, and the voters, to know that within a decade, there would be multiple states legalizing same-sex unions. 49. The justifications given at the time were similar to those in support of the Defense of Marriage Act and none of these justifications, or any other justification that might now be offered, passes Constitutional muster. 50. Neither tradition nor moral disapproval of same-sex relationships or marriage for lesbian and gay couples is a legitimate basis for unequal treatment of same-sex couples under the law. The fact that a discriminatory law is longstanding does not immunize it from constitutional scrutiny. And the Supreme Court has made clear that the law cannot,

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directly or indirectly, give effect to private biases and has expressly rejected moral disapproval of marriage for same-sex couples as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op., at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
Preserving the Public Fisc and the Coffers of Private Business 51. The Commonwealth cannot justify its denial of marriage to lesbian and gay couples by claiming an interest in preserving the public fisc or the coffers of private business. Saving money is not a justification for excluding a group from a government benefit without an independent rationale for why the cost savings ought to be borne by the particular group denied the benefit. Moreover, the evidence will show that there is no factual basis for the notion that allowing and recognizing the marriages of same-sex couples will burden the Commonwealth financially or constitute a burden on businesses.
CLAIMS FOR RELIEF COUNT I:
Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution (42 U.S.C. § 1983)
52. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 53. The Fourteenth Amendment to the United States Constitution precludes any State from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Governmental interference with a fundamental right may be sustained only upon a showing that the legislation is closely tailored to serve an important governmental interest.

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54. The Supreme Court has long recognized that marriage is a fundamental right and that choices about marriage, like choices about other aspects of family, are a central part of the liberty protected by the Due Process Clause. 55. Kentucky law denies the Plaintiff couple and other same-sex couples this fundamental right by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states and countries. 56. The Commonwealth can demonstrate no important interest to justify denying the Plaintiff couple this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all. 57. The Commonwealth's prohibition of marriage between persons of the same sex and its refusal to recognize marriages entered into by same-sex couples in other jurisdictions violates the Due Process Clause. 58. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983)
59. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 60. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV,§ 1. 61. By denying the Plaintiff couple and other lesbian and gay couples the ability to marry and to have their out-of-state marriages recognized, the Commonwealth, through Defendants, disadvantages lesbian and gay people on the basis of their sexual orientation.

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It denies them significant legal protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples interact, including their own children," that their relationship is "less worthy" than the relationships of others. Windsor, Slip Op., at 25. 62 Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage. 63. The evidence will show that classifications based on sexual orientation demand heightened scrutiny. 64. Lesbians and gay men are members of a discrete and insular minority that has suffered a history of discrimination in the Commonwealth and across the United States. 65. Sexual orientation bears no relation to an individual's ability to perform or contribute to society. 66. Sexual orientation is a core, defining trait that is so fundamental to one's identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. Efforts to change a person's sexual orientation through interventions by medical professionals have not been shown to be effective. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and many —including the American Psychological Association and the American Psychiatric Association —have adopted policy statements cautioning professionals and the public about these treatments. 67. Prejudice against lesbians and gay men continues to seriously curtail the operation of the political process preventing this group from obtaining redress through legislative means. Lesbians and gay men lack statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half of the states, including Kentucky. Lesbians and gay men have far fewer civil rights protections at the state and federal level than women and racial minorities had when sex and race classifications-were declared to be suspect or quasi suspect. They have been stripped of the right to marry through 30 state constitutional amendments, and have been targeted through the voter initiative process more than any other group.

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68. For all these reasons, classification based on sexual orientation should be reviewed under heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny. The Commonwealth's exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest. All it does it disparage and injure lesbian and gay couples and their children. 69. The Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause. 70. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III: Discrimination on the Basis of Sex in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983)
71. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 72. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ...deny to any person within its jurisdiction the equal protection of the laws.'.' U.S. Const. amend. XIV, § 1. 73. Commonwealth law defines marriage as " Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Kentucky Amendment 223A. 74. By defining marriage in this way, the Commonwealth discriminates on the basis of sex. For example, Plaintiffs Kim and Tammy are not permitted to marry in this Commonwealth solely because they are both women. If Tammy (or Kim) were a man, the marriage would be allowed. The only reason the marriage is prohibited is the sex of the partners.

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75. In addition, the Commonwealths has made KRS 402.045(1) which provides in part that, “A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” KRS 402.045(2) provides that “Any rights granted by virtue of the [same sex] marriage, or its termination, shall be unenforceable in Kentucky courts.” 76. The marriage of Kim and Tammy, for example, is denied recognition solely because they are both women. 77. The Supreme Court has made clear that perpetuation of traditional gender roles is not a legitimate government interest. 78. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage. 79. The Defendants can demonstrate no exceedingly persuasive justification for this discrimination based on sex. 80. Commonwealth law prohibiting marriage and recognition of marriage for same-sex couples thus violates the Equal Protection Clause. 81. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that 223A Amendment to the Kentucky Constitution violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; 2. Enter a declaratory judgment that KRS 402.045(2) and KRS 402.045 (1) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; 3. Enter a permanent injunction enjoining Defendants from denying the Plaintiff couple and all other same-sex couples the right to marry in the Commonwealth of Kentucky and

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directing Defendants to recognize marriages validly entered into by the Plaintiff couple and other same-sex couples outside of the Commonwealth of Kentucky; 4. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. § 1988; and 5. Enter all further relief to which Plaintiffs may be justly entitled.
Respectfully submitted this 16th day of August, 2013.

_/s/ DAWN ELLIOTT Dawn Elliott 1752 Frankfort Ave. Louisville, KY 40206 502.569.7710 Counsel for Plaintiffs

FAUVER

LAW OFFICE, PLLC

_/s/ SHANNON FAUVER

Shannon

Fauver

1752 Frankfort Ave.

Louisville,

KY 40206

502-569-7710

Counsel for Plaintiffs

 
 Case 3:13-cv-00946-JGH Document 23 Filed 02/12/14 Page 1 of 1 PageID #: 102

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

CIVIL ACTION NO. 3:13-CV-946-H

KIMBERLY FRANKLIN, et al.

PLAINTIFFS

V.

STEVEN BRESHEAR, et al.

DEFENDANTS

ORDER

This case having been previously transferred to this Court and the claims herein having

been asserted in another similar case, and being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the claims herein are DISMISSED WITHOUT

PREJUDICE.

February 11, 2014

cc: Counsel of Record

 
 Case: 3:13-cv-00946-JGH As of: 07/17/2014 02:57 PM EDT 1 of 4
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:13−cv−00946−JGH

CLOSED

Franklin et al v. Breshear et al Assigned to: Judge John G. Heyburn, II Case in other court: Kentucky Eastern, 3:13−cv−00051 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 10/02/2013 Date Terminated: 02/12/2014 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Kimberly Franklin

represented by Dawn R. Elliott Fauver Law Office 1752 Frankfort Avenue Louisville, KY 40206 502−569−7710 Fax: 502−899−2467 Email: dawn@fauverlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Renee Fauver Fauver Law Office 1752 Frankfort Avenue Louisville, KY 40206 502−569−7710 Fax: 502−899−2467 Email: shannon@fauverlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Tamera Boyd

represented by Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Steve Breshear in his official capacity as Governor of Kentucky

represented by Brian Thomas Judy Kentucky Cabinet for Health and Family Services− 275 E. Main Street, 5th Floor West Frankfort, KY 40621−0001 502−696−5630 Fax: 502−564−6801 Email: brian.judy@ag.ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay A. Barkley Kentucky Attorney General− Civil &Envirnonmental Law Div.

Case: 3:13-cv-00946-JGH As of: 07/17/2014 02:57 PM EDT 2 of 4

700 Capital Avenue, Suite 118 Frankfort, KY 40601−3449 502−696−5628 Fax: 502−564−2894 Email: clay.barkley@ag.ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jack Conway in his official capacity as Attorney General of Kentucky

represented by Brian Thomas Judy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clay A. Barkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sue Carol Perry in her official capacity as Shelby County Clerk

represented by Robert T. Watson McBrayer, McGinnis, Leslie &Kirkland, PLLC − Louisville 9300 Shelbyville Road, Suite 210 Louisville, KY 40222 502−327−5400 Fax: 502−327−5444 Email: rwatson@mmlk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris J. Gadansky McBrayer, McGinnis, Leslie &Kirkland, PLLC − Louisville 9300 Shelbyville Road, Suite 210 Louisville, KY 40222 502−327−5400 Fax: 502−327−5444 Email: cgadansky@mmlk.com ATTORNEY TO BE NOTICED

Date Filed 08/16/2013
08/16/2013 08/19/2013 08/27/2013
08/27/2013

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ( Filing fee $400; receipt number 0643−2724379), filed by Kimberly Franklin, Sue Carol Perry. (Attachments: # 1 Case Assignment, # 2 Exhibit − Marriage Certificate, # 3 Summons)(CBD) Modified text to match caption on 8/19/2013 (CBD). [Transferred from kyed on 10/2/2013.] (Entered: 08/19/2013)
2 Summons Issued as to Steve Breshear, Jack Conway, Sue Carol Perry; Summons issued and returned to counsel by U.S. Mail for service by Kentucky Secretary of State. (CBD) [Transferred from kyed on 10/2/2013.] (Entered: 08/19/2013)
Conflict Check run. (CBD) [Transferred from kyed on 10/2/2013.] (Entered: 08/19/2013)
3 NOTICE TO ATTORNEY Dawn Elliott by Clerk re: L.R. 83− Attorney Admission procedure w/ a copy of L.R. 83 and Attorney Admission Application (Attachments: # 1 Attorney Routing Form)(CBD) [Transferred from kyed on 10/2/2013.] (Entered: 08/27/2013)
4 CERTIFIED MAIL RECEIPTS to Kentucky Secretary of State received 8/26/2013 re 2 Summons Issued. (CBD) (Main Document 4 replaced with same image minus extra blank page on 9/5/2013) (CBD). [Transferred from kyed on 10/2/2013.]

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08/30/2013 08/30/2013 09/03/2013 09/03/2013 09/03/2013 09/03/2013 09/06/2013 09/06/2013 09/06/2013 09/25/2013
09/25/2013
09/25/2013 09/26/2013 09/26/2013
09/26/2013

(Entered: 08/27/2013)
5 NOTICE by Tamera Boyd re 1 Complaint, of corrected summons (Attachments: # 1 Summons)(Fauver, Shannon) [Transferred from kyed on 10/2/2013.] (Entered: 08/30/2013)
6 Summons Returned Unexecuted by Tamera Boyd as to Sue Carroll and Jack Conway. (Fauver, Shannon) Modified by adding text to better describe pleading on 9/3/2013 (AKR). [Transferred from kyed on 10/2/2013.] (Entered: 08/30/2013)
7 Summons Returned Unexecuted by Kimberly Franklin as to Steve Breshear. (Fauver, Shannon) [Transferred from kyed on 10/2/2013.] (Entered: 09/03/2013)
8 Summons Issued as to Steve Breshear; Summons issued and returned to counsel electronically. (AKR) [Transferred from kyed on 10/2/2013.] (Entered: 09/03/2013)
9 Summons Issued as to Jack Conway; Summons issued and returned to counsel electronically. (AKR) [Transferred from kyed on 10/2/2013.] (Entered: 09/03/2013)
10 Summons Issued as to Sue Carroll; Summons issued and returned to counsel electronically. (AKR) [Transferred from kyed on 10/2/2013.] (Entered: 09/03/2013)
11 SUMMONS Returned Executed by Tamera Boyd via Process Server to Sue Carol Perry served on 9/4/2013, answer due 9/25/2013. (Fauver, Shannon) [Transferred from kyed on 10/2/2013.] (Entered: 09/06/2013)
12 SUMMONS Returned Executed by Tamera Boyd via Process Server to Jack Conway served on 9/4/2013, answer due 9/25/2013. (Fauver, Shannon) [Transferred from kyed on 10/2/2013.] (Entered: 09/06/2013)
13 SUMMONS Returned Executed by Tamera Boyd via Process Server to Steve Breshear served on 9/4/2013, answer due 9/25/2013. (Fauver, Shannon) [Transferred from kyed on 10/2/2013.] (Entered: 09/06/2013)
14 MOTION to Dismiss for failure to state a claim by Sue Carol Perry (Attachments: # 1 Memorandum in Support of Defendant's Motion to Dismiss, # 2 Proposed Order Granting Defendant's Motion to Dismiss)(Gadansky, Chris)[Transferred from kyed on 10/2/2013.] Modified on 10/21/2013 untermed motion per ARM (TLB). (Entered: 09/25/2013)
15 JOINT MOTION to Change Venue by Tamera Boyd, Kimberly Franklin, Sue Carol Perry, Steve Breshear, Jack Conway (Attachments: # 1 Proposed Order)(Barkley, Clay) Modified by adding all filers and text to better describe pleading on 9/26/2013 (AKR). [Transferred from kyed on 10/2/2013.] (Entered: 09/25/2013)
16 ANSWER to 1 Complaint, by Steve Breshear, Jack Conway.(Barkley, Clay) [Transferred from kyed on 10/2/2013.] (Entered: 09/25/2013)
***MOTION SUBMITTED TO CHAMBERS of Judge Van Tatenhove for review: re 15 JOINT MOTION to Change Venue by Tamera Boyd, Kimberly Franklin, Sue Carol Perry, Steve Breshear, Jack Conway . (AKR) [Transferred from kyed on 10/2/2013.] (Entered: 09/26/2013)
NOTICE OF DEFICIENCY TO Clay Barkley re 16 Answer to Complaint; attorney failed to provide a certificate of service with pleading. Each pleading must have a certificate of service. Within 7 calendar days, prepare a pleading entitled "Notice of Filing" (with a certificate of service), file the Notice using the event "Notice of Filing," attach the certificate of service, and create a link to the related docket entry. cc: COR (AKR) [Transferred from kyed on 10/2/2013.] (Entered: 09/26/2013)
Attorney Update. Attorney Brian Thomas Judy for Steve Beshear, Brian Thomas Judy for Jack Conway added. (CBD) [Transferred from kyed on 10/2/2013.] (Entered: 09/26/2013)

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10/21/2013 02/12/2014

Attorney Update. Attorney Robert T. Watson for Sue Carol Perry added. (CBD) [Transferred from kyed on 10/2/2013.] (Entered: 09/26/2013)
17 NOTICE OF FILING by Steve Breshear, Jack Conway re 16 Answer to Complaint Certificate of Service (Barkley, Clay) [Transferred from kyed on 10/2/2013.] (Entered: 10/02/2013)
18 ORDER: The Court being sufficiently advised, this case is hereby transferred, in the interest of justice and for the convenience of the parties and witnesses pursuant to 28 USC § 1404, to the Western District of Kentucky, to be consolidated with the earlier filed and currently pending case of Bourke, et al. v. Steve Beshear, et aI., No.3: 13−CV −750. This transfer includes all pleadings filed to date. It is so ordered (AKR)cc: COR [Transferred from kyed on 10/2/2013.] (Entered: 10/02/2013)
19 Case transferred in from District of Kentucky Eastern; Case Number 3:13−cv−00051. Original file certified copy of transfer order and docket sheet received. (JBM) (Entered: 10/02/2013)
20 Case Assignment (Random Selection): Case Assigned to Senior Judge Thomas B. Russell. Magistrate designation: Dave Whalin. (JBM) (Entered: 10/02/2013)
Remark: Copy of case assignment and NEF have been sent to participating parties advising of case transfer information. (JBM) (Entered: 10/02/2013)
21 ORDER REASSIGNING CASE. Case reassigned to Judge John G. Heyburn, II for all further proceedings. Senior Judge Thomas B. Russell no longer assigned to case.cc:counsel (MM) (Entered: 10/08/2013)
22 ORDER by Judge John G. Heyburn, II on 10/17/2013. Telephonic Status Conference held on 10/10/2013. IT IS HEREBY ORDERED any dispositive motions can be filed on or before 11/25/2013, with responses to be filed on or before 12/16/2013. Normal reply times shall apply in accordance with the Local Rules of the Western District of Kentucky. The matters will then be submitted before the Court. cc: Counsel (TJD) (Entered: 10/18/2013)
NOTICE OF DOCKET CORRECTION re 14 , Set Motion and RRDeadlines/Hearings, 22 Order, ; :DN#14 Motion to Dismiss reinstated per Transfer to W/D of KY and Order DN#22 for response and reply ddls in case and related action−−13Cv−750−H; (ARK) (Entered: 10/21/2013)
23 ORDER by Judge John G. Heyburn, II on 2/11/2014 Dismissing Case Without Prejudice.cc:counsel (DAK) (Entered: 02/12/2014)