Memorandum

City of Lawrence

Legal Services Department

TO:	David L. Corliss, City Manager
FROM:	Toni Ramirez Wheeler, Interim Director of Legal Services
Date:	October 30, 2006
RE:	Draft Ordinances Providing for Domestic Partnership Registration

The purpose of this memorandum is to provide information regarding ordinances recognizing domestic partnership relationships.  The memorandum begins with a review of the draft ordinances and resolutions contained in your file, briefly discussing the effects of the documents, as written.  This memorandum will also outline the common features of ordinances establishing domestic partnership registration in other cities.  The memorandum will touch upon the common legal challenges that ordinances establishing domestic partner registrations in other communities have faced.  The memorandum will conclude with a brief overview of relevant Kansas statutes and constitutional provisions.   

A Review of the Draft Ordinances and Resolutions Contained In Your File

The draft resolutions authorize the City Manager to register domestic partners.  It provides that registration may occur in the City Clerk’s office with the individuals signing a document affirming their partnership in the presence of a city employee who is a notary public.  The resolution provides for a fee, but the draft resolution does not specify an amount.  Finally, the resolution authorizes the City Manager to establish the procedures for the registration and dissolution of domestic partnerships. 

The draft ordinance contained in your file does essentially three things.  First, it adds the term “domestic partner” to the defined terms contained in Chapter 10 of the City Code.  It defines “domestic partner” as follows:

Domestic Partner means two individuals who have reached the age of majority and live together in a relationship of indefinite duration, with an exclusive mutual commitment in which the partners share the necessities of life and are financially interdependent.  Also, domestic partners are not married to anyone else, do not have another domestic partner and are not related by blood more closely than would bar their marriage in this state.

Second, the draft ordinance amends the definition of the term “family” that appears in Chapter X of the City Code to include registered domestic partners.  The amended definition reads:

10-102.15 FAMILY

Includes a single individual; IMMEDIATE FAMILY means and includes parent, child, grandparent, grandchild, sibling, and spouse, and registered domestic partner.

Third, the draft ordinance amends the definition of “family” that appeared in the old zoning code.  The suggested amendments can easily be adapted to achieve the same result in the Land Development Code that became effective on July 1, 2006.  The amended definition of family as proposed in the draft ordinance would read:

20-1701 GENERAL TERMS

Family

(1) A person living alone; (2) two or more persons related by blood, marriage, registered domestic partnership, or legal adoption; (3) in an RS Zoning District, a group of not more than three persons not related by blood or, marriage or registered domestic partnership, living together as a single Housekeeping Unit in a Dwelling Unit, as distinguished from a group occupying a Dormitory, Boarding House, lodging house, motel, hotel, fraternity house or sorority house; or (4) in a Zoning District other than RS, a group of not more than four persons not related by blood or, marriage or registered domestic partnership, living together as a single Housekeeping Unit in a Dwelling Unit, as distinguished from a group occupying a Dormitory, Boarding House, lodging house, motel, hotel, fraternity house or sorority house.

The effects of the proposed ordinance will be recognition of domestic partnerships that are registered with the City.  In Chapter 10, the amendment to the definition of “family” will also impact the definition of “employee” as that term refers to the definition of “immediate family” within the “employee” definition.  The amendment to the definition of “family” in the Land Development Code will in many cases, increase the number of persons who may reside together in a dwelling unit in an RS zoning district.  For example, under the existing definition of family, an unlimited number of people may reside together in a dwelling unit in an RS zoning district if they are all related by blood or marriage.  In an RS zoning district, if the parties are not related by blood or marriage, no more than three unrelated persons may reside together.  By amending the definition of family as set forth above, the proposed ordinance will allow persons related by a registered domestic partnership to reside together in the dwelling unit, unrestrained by the three person limitation. 

There may be additional consequences of the ordinance.  Other entities (private entities) may choose to recognize the registry as a basis for extending benefits to the registrants.  The registrants may use the registration as a basis for seeking benefits from private entities or other jurisdictions.  City employees may seek employment benefits for registered domestic partners.

The draft ordinances and resolutions contained in your file provide for the recognition of registered domestic partnerships.  A review of ordinances creating domestic partner registries from other communities may be beneficial.

Ordinances Establishing Domestic Partnership Registration In Other Cities

Our research located no ordinances providing for the registration of domestic partnerships in Kansas.  Many other communities, including several in the Midwest, have adopted ordinances including:  Kansas City, Missouri; St. Louis, Missouri; Iowa City, Iowa; Boulder, Colorado; Denver, Colorado; Minneapolis, Minnesota; Madison, Wisconsin; Milwaukee, Wisconsin; Oak Park, Illinois; Ann Arbor, Michigan; Cleveland Heights, Ohio; Chapel Hill, North Carolina; Tumwater, Washington; and Portland, Oregon.  In addition to these communities, several cities on both of the east and west coasts have passed ordinances establishing domestic partner registries.

The stated purposes of some of the ordinances include providing a means “by which unmarried couples in a mutual support, caring and commitment may document their relationship”, recognizing the cultural changes in our society that have resulted in “diverse living arrangements and the development of nontraditional family compositions or familial units”, and seeking equal treatment for domestic partners.  Although the ordinances collected from other communities are varied, and operate under different constitutional and statutory provisions, they contained many common elements or features.     

Common Features of Ordinances Establishing Domestic Partner Registration

Who May Register?

The ordinances define who is eligible to register in a domestic partnership.  Most of the ordinances require the individuals to be eighteen years of age or older, unmarried, not related by blood to the other in a manner that would bar marriage in the state in which they are registering, be competent to enter into a contract, be residents of the City in which they are registering, and who declare they are in a domestic relationship.  Some ordinances require the registrants to declare they meet conditions of a domestic partnership:  joint ownership of a residence, share a lease for a residence identifying both applicants as tenants, jointly own a motor vehicle, have a joint bank, credit union or credit account.  Some communities limit the registration to same-sex couples, since these couples are ineligible to marry in most states.  Other communities make registration available to opposite-sex couples. 

How Does A Couple Register?

The applicants are generally required to complete applications.  Some ordinances require applicants to swear or affirm, subject to penalties, that the information declared and stated in the application is true and correct.  Some ordinances require the City Clerk to verify certain information in the applications.  Other ordinances state that a City official (a city administrator or clerk) may establish the procedures for registration.  

Termination of the Registration

The ordinances set forth how a domestic partner registration is terminated.  The death or marriage of one of the registering individuals will terminate a domestic partner registration.  A procedure by which one or both of the partners may terminate a registration is also provided.  Some cities have implemented a waiting period after one domestic partnership has ended before a partner may register in another domestic partnership.  Most communities do not assess a fee for the termination of a domestic partnership.

Public Records

Some of the ordinances require the City Clerk to maintain records showing which partnerships have been created, terminated or amended.  At least one ordinance established a procedure for keeping the registration confidential, upon the registrant’s request.    

Fees

Many of the ordinances assess a fee for the filing of a domestic partnership designed to pay the actual costs to the City for processing the domestic partnership declarations and termination notices.  The fees range from $25 to $50. 

Legal Challenges to Ordinances Establishing Domestic Partnership Registration

There are a number of reported cases challenging domestic partnership measures enacted by cities.  Although our department’s review of these reported cases has not been exhaustive, a number of the cases in which the local ordinance is challenged appear to involve ordinances that extend employment benefits to the registered domestic partners of city employees.  These ordinances are challenged by taxpayers on the basis of exceeding the home rule powers of the cities and violating state constitutions and state statutes. 

The draft ordinance and resolution contained in your file, and reviewed above, do not extend employment benefits to the registered domestic partners of City employees or non-City employees.  The draft ordinance amends definitions of the words “family” in two chapters in the City Code.  Whether the amendments will be interpreted to confer a benefit upon the registrants may be an issue that could be challenged in a court.

In the case, City of Cleveland Heights ex rel. Hicks, et al. v. City of Cleveland Heights, 832 N.E.2d 1275 (OhioApp. 8 Dist. 2005), Cleveland Heights residents/taxpayers challenged whether the administration and enforcement of the local ordinance establishing a domestic partnership registry fell within the realm of local self government.  Id. at 1278.  The ordinance in question did not confer a benefit upon registrants, other than inclusion in a list of registered domestic partnerships.  The registering couples paid a fee to cover the entire cost of the registry so the taxpayers did not incur a cost as a result of the registration program.  Jurisdictions outside the City were not bound to recognize the registrations or to confer rights or obligations upon the registrants.  Id.  The court held that given the nature of the City’s registration program, it was a matter of local self government under the laws of Ohio.  Id.        

Applicable Kansas Constitutional and Statutory Provisions

Cities have broad home rule powers granted by the people through the Kansas Constitution.  (Article 12, § 5).  The key language from the Constitution includes:

Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions…

Cities shall exercise such determinations by ordinance passed by the governing body with referendum only in such cases as prescribed by the legislature subject only to enactments of the legislature of statewide concern applicable uniformly to al cities, to other enactments applicable uniformly to all cities…

Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.

Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self government. 

A city may enact an ordinance when there is a uniform state law on the subject, the law does not explicitly preempt local action, the city desires to supplement the state law and there is no conflict between the state law and the local addition.  If the area of the law has not been clearly preempted by the Legislature, local action is permitted.  Michael R. Heim, Home Rule: A Primer, 74 J. Kan. Bar Assoc. 26, 31 (Jan. 2005).  The doctrine of implied preemption has been rejected by the Kansas Supreme Court.  Kline v. Unified Government of Wyandotte County/Kansas City, Kansas, 277 Kan. 516, 85 P.3d 1237 (2004). 

An ordinance amending the definition of family to include a reference to registered domestic partnerships does not appear to conflict with provisions of Chapter 12, Article 7 (Planning and Zoning) of the Kansas Statutes Annotated.  Chapter 12, Article 7 does not explicitly preempt local action on this issue.  Similarly, an ordinance defining domestic partner in Chapter 10 of the City Code is not preempted by or in conflict with the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.    

People who oppose an ordinance providing for the registration of domestic partnerships may contend it violates the Kansas statute defining marriage, K.S.A. 23-101, and Article 15, §16 of the Kansas Constitution. 

K.S.A. 23-101 defines marriage.  It states:

23-101. Nature of marriage relation. (a) The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex.  All other marriages are declared to be contrary to the public policy of this state and are void.  The consent of the parties is essential.  The marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.

(b) The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage contract is under 18 years of age.

Article 15, §16 of the Kansas Constitution states:

§16.  Marriage. (a) The marriage contract is to be considered in law as a civil contract.  Marriage shall be constituted by one man and one woman only.  All other marriages are declared to be contrary to the public policy of this state and are void.

(b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.

As stated earlier in this memorandum, currently no Kansas city recognizes registered domestic partnerships.  How a Kansas court would interpret the above statutory and constitutional provisions as they relate to an ordinance establishing a system to register domestic partnerships is not known.  Other courts in other jurisdictions have distinguished domestic partnership registrations from marriages.  Additional research into how these provisions could impact a local ordinance will be necessary.