WHITEHEAD LAW FIRM, LLC
           Trial Counsel...practicing preventive law

  Call 816-398-8967
                 Email:  info@TheWhiteheadFirm.Com

News

April 4, 2014

FOR IMMEDIATE RELEASE

Contact Michael Whitehead

Mike@TheWhiteheadFirm.Com 

JUDGE WON’T HALT NIXON ORDER – FOR NOW.  

JEFFERSON CITY, Mo. (AP) —   The attorney for four taxpayer plaintiffs told a circuit judge that every citizen of Missouri is harmed when a governor can use an executive order to create new tax breaks for his political supporters.

The argument was made during an hour-long hearing in Cole County on April 3 before Judge Jon Beetem, in which plaintiffs were seeking a temporary restraining order (TRO) against an executive order by Governor Jay Nixon regarding the filing of combined tax returns by same sex couples wed in other states.  

Judge Beetem denied the TRO request on April 5, but set an early status conference for May 2 to schedule remaining proceedings in the case.   The judge specifically noted in his ruling that by denying the TRO he was not taking a position on whether the legal challenge is likely to succeed. 

Mike Whitehead, attorney for four plaintiffs, pro-family leaders in the State, filed a motion on March 25, asking the court to temporarily enjoin the implementation of the policy, pending the final resolution of the case.   After the judge declined, Whitehead said: "The TRO motion was the first step in the process to get to a trial on a permanent injunction.  We move now to the steps regarding a preliminary or a permanent injunction.   We are glad  the judge set a May 2 date to schedule these next steps as soon as possible.  It is the final judgment that is important."

Solicitor General James Layton argued for the State of Missouri against the motion for TRO.  Also opposing the motion was ACLU lawyer Anthony Rothert, St. Louis, on behalf of a same-sex couple from St. Louis who were allowed to intervene in the case on the side of the Governor.  The defendant-intervenors said they had been married in Iowa and would be affected financially by the Court’s ruling.  They also noted that they may wish to challenge Missouri’s Marriage Amendment as violating the U.S. Constitution on equal protection grounds.   The Solicitor General said the Attorney General’s Office will not be making that argument.  Judge Beetem allowed Ed Reggi and Scott Emanuel, to intervene as defendants, and allowed Mr. Rothert to argue at the hearing. 

Whitehead proposed a court order that would  have restrained “Soliciting, inviting, accepting, permitting or requiring the filing of a combined State Income Tax Return by anyone known to be other than a married individual as defined by Article 1, § 33, and by R.S. Mo. §451.022.”   “PROVIDED, this Order shall not require the Department of Revenue to reject, return or take further action regarding the combined returns, if any, already filed by calendar year taxpayers for 2013, or which are duly filed on or before  April 15, 2014, at 12:00 midnight.”

Whitehead said the plaintiffs were not seeking to affect the tax filing process during the current tax season and that the denial of the TRO does not change their legal position.

Solicitor Layton told the court that officials don’t know whether any same-sex couples have filed combined Missouri tax returns since Gov. Jay Nixon’s executive order.  

“There is nothing on the forms, nothing in the law that requires someone to submit information that would allow the director of revenue to look at a return and say, `Oh, that person is not married as recognized under Missouri law – whether it’s because they are of the same gender or some other reason,” Layton said.

“Mr. Layton knows of at least one couple – Mr. Rothert’s clients,” Whitehead responded.  “The ACLU has also filed a separate lawsuit in Kansas City on behalf of eight same sex couples – so now we are up to nine combined returns.” 

The motion for a “TRO” was the first  step in the legal process which started in January this year when the four plaintiffs filed a lawsuit naming the governor and his director of revenue, challenging the Executive Order 13-14, which Gov. Nixon issued November 14, 2013. The order directs the Director of Revenue to require Missouri combined returns from same sex couples who were married in a state recognizing same sex marriage, and who filed a federal joint return.

The lawsuit claims that the governor exceeded his executive authority when he issued the order because it violates Article I, Section 33, of the Missouri Constitution, commonly called the Missouri Marriage Amendment, passed by Missouri voters in 2004. The amendment says simply: “that to be valid and recognized in this state, a marriage shall exist only between a man and a woman.” The petition for declaratory judgment asks for “injunctive relief,” beginning with a TRO, and ending with a permanent injunction.

Whitehead made a statement after the hearing:

 “My clients’ objective is not to require anyone to pay more taxes or file more paperwork than they did before. Their objective is to require state officials to obey the state constitution and the laws.

“Even the Windsor case affirmed that the definition and regulation of marriage has been regarded as a virtually exclusive province of the States from the Nation’s beginning. (133 S. Ct. 2680) The People of this State have reserved this power to themselves, and it cannot be taken from them by executive orders of governors or presidents.” 

The plaintiffs are:

Justin Mosher, pastor of Fifth Street Baptist Church in Hannibal, Mo., and chairman of the Missouri Baptist Convention’s (MBC) Christian Life Commission (CLC).

Don Hinkle, MBC director of public policy and editor of the MBC’s newsjournal, The Pathway.

Kerry Messer from Festus, Mo., legislative liaison for the CLC in the Missouri Legislature. He also founded a pro-family organization based in Jefferson City, Mo., called Missouri Family Network.

Joe Ortwerth, executive director of the Missouri Family Policy Council, one of more than 30 such state organizations formally associated with Focus on the Family, the family support ministry founded by Dr. James Dobson.

March 26, 2014

FOR IMMEDIATE RELEASE

Contact Michael Whitehead

Mike@TheWhiteheadFirm.Com

Jefferson City, MO - Four Missouri taxpayers have filed a motion for a temporary restraining order in Cole County Circuit Court, seeking to stop state officials from violating the state constitution by requiring combined tax returns from certain same-sex couples, pursuant to an executive order issued by Gov. Jay Nixon last fall.

The motion for a “TRO” is the next step in the legal process which started in January this year when the four plaintiffs filed a lawsuit naming the governor and his director of revenue, challenging the Executive Order 13-14, which Gov. Nixon issued November 14, 2013.   The order directs the Director of Revenue to require  Missouri combined returns from same sex couples who were married in a state recognizing same sex marriage, and who filed a federal joint return.

The lawsuit claims that the governor exceeded his executive authority when he issued the order because it violates Article I, Section 33, of the Missouri Constitution, commonly called the Missouri Marriage Amendment, passed by Missouri voters in 2004.   The amendment says simply: “that to be valid and recognized in this state, a marriage shall exist only between a man and a woman.”  The petition for declaratory judgment asks for “injunctive relief,” beginning with a TRO, and ending with a permanent injunction.

The TRO motion asks Judge Jon Beetem to order state officials to stop accepting combined returns immediately, except from persons lawfully married under Missouri law, until a full hearing on the lawsuit may be held.  Such a full hearing might occur before or after the April 15 filing deadline for 2013 income tax returns.

A case management hearing in the case is set for Friday, March 28, at 9 AM in Cole County.  The TRO Motion is noticed up for that date, although it is likely that the judge will set a later date for a hearing on this and another pending motion.

A motion to intervene in the case has been filed by two St. Louis men, Ed Reggi and Scott Emanuel, both represented by the American Civil Liberties Union. (ACLU)   Their motion states that the Attorney General who represents the State will not adequately represent their interests as a same sex couple, married in Iowa, who want to file a combined return. They asked to intervene “as a matter of right” under Missouri Rules of Civil Procedure. This motion has also been noticed up for Friday, March 28.   

Michael Whitehead, a Kansas City attorney for the plaintiffs, filed a brief opposing the intervention, saying he is confident the Attorney General will adequately represent the interests of citizens who support the executive order.   Whitehead said the issues in the case are mostly about executive authority and the constitution, not just marriage law, so the Attorney General is the best representative.  He suggested that the applicants may wish to participate by filing friend of the court briefs; or the applicants may join in a separate lawsuit filed by ACLU in Kansas City on February 11, on behalf of 8 same sex couples married in other states, directly challenging the Missouri Marriage Amendment on equal protection and due process grounds.  (They say it is commonly called the “Missouri Anti-Marriage Amendment.”)

The applicants-intervenors complain that plaintiffs suffer no real harm by allowing same sex couples to file tax returns.   Whitehead says that argument misconceives the constitutional law issue, and the policy behind combined returns under current law. 

“Two close friends who live together, or two adult sisters who share a house cannot file a combined income tax return just because they love each other.  A Missouri combined return is limited to a husband and wife, which under Missouri law is limited to a man and a woman.  Promoting that unique relationship does not necessarily denigrate all other couples who cannot file combined returns.”

“My clients’ objective is not to require anyone to pay more taxes or file more paperwork than they did before.  Their objective is to require state officials to obey the state constitution and the laws.”

“Even the Windsor case affirmed that the definition and regulation of marriage has been regarded as a virtually exclusive province of the States from the Nation’s beginning. (133 S. Ct. 2680)   The People of this State have reserved this power, and it cannot be taken from them by executive orders of governors or presidents.”  

The plaintiffs are:

  • Justin Mosher, pastor of Fifth Street Baptist Church in Hannibal, Mo., and chairman of the Missouri Baptist Convention’s (MBC) Christian Life Commission (CLC).
  • Don Hinkle, MBC director of public policy and editor of the MBC’s newsjournal, The Pathway.
  • Kerry Messer from Festus, Mo., legislative liaison for the CLC in the Missouri Legislature. He also founded a pro-family organization based in Jefferson City, Mo., called Missouri Family Network.
  • Joe Ortwerth, executive director of the Missouri Family Policy Council, one of more than 30 such state organizations formally associated with Focus on the Family, the family support ministry founded by Dr. James Dobson.

FOUR MISSOURI TAXPAYERS SUE GOVERNOR OVER EXEC ORDER
Jan 8, 2014  
See Petition Here  

JEFFERSON CITY, Mo. – Four Missouri taxpayers filed a lawsuit on Jan. 8 challenging Missouri Governor Jay Nixon’s recent executive order that permitted some same-sex couples to file a Missouri combined income tax return as “husband” and “wife” for 2013, in spite of a 2004 state constitutional amendment which defines marriage as between one man and one woman.

The lawsuit challenges Executive Order 13-14 as being unconstitutional, and alleges that the governor is trying to thwart the will of the people of Missouri, where nearly 71 percent of the voters adopted “Amendment 2” in 2004. The amendment, now codified as Article 1, Section 33 of the Missouri Constitution, says simply, “That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.”

The executive order was issued by Governor Nixon in November 2013 and directed the Department of Revenue to accept combined returns from same-sex couples that properly filed a federal joint return with the IRS. The IRS has decided to permit same-sex couples to file a joint federal return if the parties were married in a state that permits same-sex marriage. The IRS decision did not bind state governments and did not mandate that states like Missouri, where same-sex marriage is unlawful, must permit joint returns under state law.

“The governor took an oath to uphold the Missouri Constitution, which includes our marriage definition,” said Michael Whitehead, a Kansas City attorney for the plaintiffs. “When he issued this order, he said he hoped the people of Missouri would take another look at recognizing same-sex ‘marriage.’ That is putting his thumb on the scales of justice. His job is to enforce the constitution as it is, not as he wishes it to be.

“If the governor wants to launch a campaign to repeal this section of our state Bill of Rights, he is welcome to try. But for now, the people of Missouri have spoken, with landslide clarity. Until the people speak otherwise, the governor should respect the rule of law and respect Missouri voters.”

The case was filed in Cole County Circuit Court in Jefferson City, Mo. The plaintiffs ask the trial judge to declare the executive order unconstitutional, and to declare that, in view of the state constitution, the Department of Revenue must not interpret tax laws to permit Missouri combined income tax returns from same-sex couples who were “married” elsewhere.

The plaintiffs are:

  • Justin Mosher, pastor of Fifth Street Baptist Church in Hannibal, Mo., and chairman of the Missouri Baptist Convention’s (MBC) Christian Life Commission (CLC).
  • Don Hinkle, MBC director of public policy and editor of the MBC’s newsjournal, The Pathway.
  • Kerry Messer from Festus, Mo., legislative liaison for the CLC in the Missouri Legislature. He also founded a pro-family organization based in Jefferson City, Mo., called Missouri Family Network.
  • Joe Ortwerth, executive director of the Missouri Family Policy Council, one of more than 30 such state organizations formally associated with Focus on the Family, the family support ministry founded by Dr. James Dobson.

States are strongly divided on same-sex marriage. While 18 states and Washington D.C. allow same-sex marriage, 32 states prohibit same-sex marriage, including 28 states with prohibitions in their state constitutions. Most states that have recently allowed same-sex marriage have done so through legislation. Since the beginning of 2011, eight states have passed legislation, one adopted it by initiative and four allow same-sex marriage as a result of court decisions.

At the time of Nixon’s executive order, no other state where same-sex marriage is unlawful had adopted a similar policy of accepting joint state returns from same-sex couples that were “married” elsewhere. In Kansas, a same-sex couple recently filed a lawsuit demanding that the state accept their joint state tax return, as a matter of “equal protection of the laws.”

For more information, contact Michael K. Whitehead of The Whitehead Law Firm, LLC (http://thewhiteheadfirm.com/) by email at Mike@TheWhiteheadFirm.com or by phone at 816.876.2600.

For Immediate Release

Southern Baptists File Brief in Supreme Court Public Prayer Case
See Brief Here

WASHINGTON, August 2, 2013—Southern Baptist lawyers today warned the U.S. Supreme Court that judges acting as the “prayer police” risk committing the same errors that led to Daniel being thrown to the lions in the Bible.

The Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention (SBC), led by Dr. Russell Moore, president, filed a Friend of the Court brief in Town of Greece v. Galloway. The brief was drafted by attorneys Michael Whitehead, of Kansas City, Mo., and Jonathan Whitehead, of Lee’s Summit, Mo.

The case involves invocations prior to city council meetings in the New York town of Greece. Since 1999, volunteers opened monthly meetings with an invocation prayer, usually by local ministers. A federal district court ruled that the prayers were lawful.

The Second Circuit Court of Appeals later ruled that prayers may contain religious content, but worried that speakers would “convey their views of religious truth,” giving the appearance of a state religion. Thus, the Second Circuit required the town to police prayers to ensure a “neutral perspective among creeds.” The Court suggested that the town may need to offer prayers from various religions, including religions not present in the community. While it refused to prohibit invocations, the Court said “these difficulties may well prompt municipalities to pause and think carefully before adopting” them.

“In the Town of Greece case, private citizens are speaking, praying for a blessing on the proceedings of their city council,” said Moore. “The government doesn’t write the prayers, and doesn’t coerce anyone’s conscience. To object to this is to insist not only that the government be neutral to religious expression, but that the government be hostile to religious expression by citizens. We stand with those who believe in the freedom of speech, including religious speech, in the public square as a prized part of our liberty.”

The ERLC brief argued that government officials cannot be asked to police religious speech.

“Such impulses have existed for almost as long as prayers have been given,” says the brief, comparing the Second Circuit’s test to the rule created by Darius the Mede in the Book of Daniel. “There, too, public prayers were allowed, if directed to the government’s watered-down deity. It is a questionable improvement that the Second Circuit would punish prayers to the wrong gods by casting officials into a mere den of lawyers.”

“Parsing the words of a prayer is no business for federal judges,” Attorney Michael Whitehead commented. “Judges should leave the parsing to the parson. There should be a wall of separation protecting praying citizens from a government mandated civil religion.”

“Local governments reading the Second Circuit rule would decide that there is no safe way to comply. So instead of more speech at city hall, we get less – and religious freedom loses,” Whitehead continued.

This was the first amicus brief filed by the ERLC since Russell Moore became its president.

Michael Whitehead is in private practice in Kansas City, and serves as general counsel for the Missouri Baptist Convention. He was co-counsel in a 1981 victory before the U.S. Supreme Court on behalf of equal access for university students at the University of Missouri-Kansas City (UMKC) to use the student union for prayer and Bible study. More information about Michael Whitehead is available at www.thewhiteheadfirm.com.

Jonathan Whitehead is a litigator and religious liberty and nonprofit law expert from Lee’s Summit, Mo. He advises churches, charities and other nonprofit organizations regarding various legal issues. Information about Jonathan Whitehead is available at www.whiteheadlawllc.com.

The Southern Baptist Convention is America’s largest non-Catholic denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics and Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn. and Washington, D.C. More information about the Southern Baptist Convention is available at www.sbc.net. Additional information about the Ethics and Religious Liberty Commission is available at www.erlc.com.

Website Builder