Appellate Case: 14-3246

Document: 01019359402

Date Filed: 12/22/2014

Page: 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
KAIL MARIE and MICHELLE L. BROWN,
and KERRY WILKS, Ph.D and DONNA
DITRANI,
Plaintiffs/Appellees,
v.
ROBERT MOSER, M.D. in his official capacity
as Secretary of the Kansas Department of Health
and Environment and
DOUGLAS A. HAMILTON, in his official
capacity as Clerk of the District Court for the 7th
Judicial District (Douglas County)
and BERNIE LUMBRERAS in her official
capacity as Clerk of the District Court for the 18th
Judicial District (Sedgwick County),
Defendants/Appellants.

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Case No. 14-3246

MOTION FOR EXTENSION OF TIME TO FILE COMBINED

BRIEF OF APPELLANTS
Appellants Robert Moser, M.D., Secretary of the Kansas Department of Health and
Environment, Douglas A. Hamilton, Clerk of the District Court for the 7th Judicial District
(Douglas County, Kansas), and Bernie Lumbreras, Clerk of the District Court for the 18th
Judicial District (Sedgwick County, Kansas), hereby move pursuant to Fed. R. App. P.
27(B) and 10th Cir. Rule 27.4 for an extension of time to file their combined brief as
appellants. Appellants request 30 days extension, to and including January 28, 2015 in
which to file their combined brief and appendix.

Appellate Case: 14-3246

Document: 01019359402

Date Filed: 12/22/2014

Page: 2

1. Appellants combined brief on the merits is presently due to be filed on December

29, 2014.
2. Chief opposing counsel, Douglas Bonney, has been contacted by telephone and has
stated that plaintiffs do not oppose the requested extension.
3. No prior extension of time has been requested.
4. It is not possible to complete the brief of appellants and to allow the multiple clients
and counsels superiors to review and approve same before the existing deadline for
filing the brief. Undersigned counsel has obtained extensions of time in other
matters to permit him to work on the brief, but his work has been seriously inhibited
by an eye infection that has limited his vision since December 8, 2014. Counsel
continues to receive medical care for the infection and is undergoing antibiotic
therapy under a doctors supervision, but he has not yet regained full use of both
eyes.
5. Prior to the diagnosis of counsels eye infection multiple extensions were obtained
in competing important litigation, including but not limited to the case of Brady
Campaign to Prevent Gun Violence v. Brownback et al., Case Number 14-CV-2327
in the United States District Court for the District of Kansas, where two extensions
of time were granted to allow counsel time to work on the proceedings in this case.
Completion of briefing in the Brady case came too late to allow the completion of
the combined brief of appellants in this appeal prior to the onset of the eye infection.

Appellate Case: 14-3246

Document: 01019359402

Date Filed: 12/22/2014

Page: 3

6. It is not possible to submit the combined brief without review and approval by the
clients and by the Kansas Attorney General due to the public policy implications of
the subject matter of the appeal. Even if the brief were completed today absences
from work related to the holidays would make it impossible to obtain the necessary
review and approval from all interested persons before Monday December 29,
2014.
7. Although the preference for joint briefing stated in 10th Cir. Rule 31.3 may not
strictly apply because appellants are all governmental actors sued in their official
capacities, the plan is to submit a single combined brief and associated appendix on
behalf of all appellants.
CONCLUSION
For all of the above stated reasons an extension of time to submit the combined brief
of appellants should be granted, to and including January 28, 2015.
Respectfully Submitted,
OFFICE OF THE ATTORNEY GENERAL
DEREK SCHMIDT
s/Steve R. Fabert
Steve R. Fabert, #10355
Assistant Attorney General
Office of the Attorney General
120 S.W. 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 368-8420
Fax: (785) 296-6296
Email: steve.fabert@ag.ks.gov
Attorney for Appellant Moser
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Appellate Case: 14-3246

Document: 01019359402

Date Filed: 12/22/2014

Page: 4

s/M.J. Willoughby
M.J. Willoughby #14059
Assistant Attorney General
Office of the Attorney General
120 S.W. 10th Avenue
Topeka, Kansas 66612-1597
Tel: (785) 296-4085
Fax: (785) 296-6296
Email: MJ.Willoughby@ag.ks.gov
Attorney for Appellants Hamilton and
Lumbreras
ECF CERTIFICATIONS
Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned
certifies that:
1. All required privacy redactions have been made;
2. The motion filed via ECF was scanned for viruses with the most recent version
of Sophos Protection and according to the program is free of viruses.
s/ Steve R. Fabert
Steve R. Fabert
CERTIFICATE OF SERVICE
This is to certify that on this 22nd day of December, 2014, a true and correct copy of
the above and foregoing was filed by electronic means via the Courts electronic filing
system which serves a copy upon Appellees counsel of record, Stephen Douglas Bonney,
ACLU Foundation of Kansas, 3601 Main Street, Kansas City, MO 64111; Mark P.
Johnson, Dentons US, LLP, 4520 Main Street, Suite 1100, Kansas City, MO 64111;
dbonney@aclukansas.org; mark.johnson@dentons.com; and Joshua A. Block, American
Civil Liberties Foundation, 125 Broad Street, 18th Floor, New York, NY 100004,
jblock@aclu.org.
s/Steve R. Fabert
Steve R. Fabert