Graphic: Masthead for Washburn Law Journal (WLJ) Online.

Washburn Law Journal Online

Mr. Sandman, Bring Me a Writ: Revisiting the Tenth Circuit’s Decision in Smith v. Aldridge, 904 F.3d 874 (10th Cir. 2018).

Dylan P. Wheeler | February 24, 2020 | Read this comment

Summary: The Tenth Circuit Court of Appeals affirmed the denial of a woman’s habeas petition from her criminal conviction in an Oklahoma state court.  The woman alleged several jurors slept throughout her trial, and produced affidavits from the jurors themselves saying as such, but the Oklahoma Court of Criminal Appeals denied relief without holding any evidentiary hearing regarding this procedural defect.  The Tenth Circuit’s underlying rationale for upholding this process is built upon assumptions formed through the use of fallacious reasoning that violates the rules of formal logic.

Preferred Citation: Dylan P. Wheeler,Mr. Sandman, Bring Me a Writ: Revisiting the Tenth Circuit’s Decision in Smith v. Aldridge, 904 F.3d 874 (10th Cir. 2018), 59 Washburn L.J. Online __ (2020).

Just When We Thought We Understood the Rule Against Perpetuities [Jason Oil Co., LLC v. Littler, 446 P.3d 1058 (Kan. 2019).]

Christopher Grause | February 10, 2020 | Read this comment

Summary: The rule against perpetuities mandates that an interest in land must vest not later than twenty-one years after the death of some life in being at the creation of the interest.  If a grantor conveys real estate for a period of twenty years or as long thereafter as minerals are produced, does the grantee’s subsequent interest in the minerals violate the rule against perpetuities?  If so, is this sort of conveyance subject to the rule against perpetuities?

Preferred Citation: Christopher Grause, Just When We Thought We Understood the Rule Against Perpetuities, 59 Washburn L.J. Online __ (2020).

You’ll Pay for What You’ve Done: Holding Industries Accountable for Societal Harms via Public Nuisance Statutes [State v. Purdue Pharma LP, et al., No. CJ-2017-816, 2019 WL 4019929, (Okla. Dist. Ct., Cleveland Cty. Aug. 26, 2019)] by Kayla K. Dieker 59 Washburn Law Journal Online __ (2019).

Kayla K. Dieker | January 27, 2020 | Read this comment

Summary: The pharmaceutical industry has played an important part in the severity of the opioid epidemic with false and misleading advertisements and marketing.  An Oklahoma district court held Johnson & Johnson liable for $572 million for their role in the opioid crisis.  The state did so by suing under Oklahoma’s public nuisance statute.  Using this statute to sue a pharmaceutical company may create an avenue to recovery against other industries who contribute to national crises by circumventing legislation that prevents suit.

Preferred Citation: Kayla K. Dieker, You’ll Pay for What You’ve Done: Holding Industries Accountable for Societal Harms via Public Nuisance Statutes, 59 Washburn L.J. Online __ (2019).

With Little Guidance Comes Great Responsibility and How Bad Facts Make Bad Law: Examining How the Kansas Court Appeals Applied Gant to DUI and the Nature of DUI Offenses [State v. Blanco, No. 119,558, 2018 Kan. App. Unpub. LEXIS 1004, at *1 (Kan. App. 2018)] by Jacob B. Cantwell 59 Washburn Law Journal Online 81

Jacob B. Cantwell | November 26, 2019 | Read this comment

Summary: In Arizona v. Gant, the United States Supreme Court created a new rule concerning the search incident to valid arrest exception. A panel of the Kansas Court of Appeals had the opportunity to examine this test in State v. Blanco concerning DUI cases. Unfortunately, the panel utilized the unusual facts of Blanco to shape DUI law for all cases. However, this Comment addresses that a DUI, by its nature, should allow officers to search a vehicle incident to a valid arrest of a recent occupant.

Preferred Citation: Jacob B. Cantwell, With Little Guidance Comes Great Responsibility and How Bad Facts Make Bad Law: Examining How the Kansas Court Appeals Applied Gant to DUI and the Nature of DUI Offenses, 59 Washburn L.J. Online __ (2019).

I Can See Clearly Now “the” … Wait What You Need to be More Clear [State v. Gensler, 423 P.3d 488, 490 (Kan. 2018)] by Jacob B. Cantwell 59 Washburn Law Journal Online 81

Jacob B. Cantwell | November 16, 2019 | Read this comment

Summary: When a court interprets a statute, its goal should always be to ascertain the legislature’s intended meaning behind the language. In order to achieve this goal, courts throughout the country give unambiguous terms their unambiguous meaning and will only use tools of statutory construction if the language is found to be ambiguous. The Kansas Supreme Court recently attempted to employ these principles in State v. Gensler, when interpreting the Kansas DUI statute, section 8-1567(i)(1) of the Kansas Statutes. The court erroneously found the word “the” to be ambiguous and used tools of statutory construction to interpret the word. If the court would have correctly analyzed the clear meaning of section 8-1567(i)(1), the court most likely would not have found the word “the” ambiguous. The Kansas Supreme Court has “substituted its idea of a proper statute in place of the one the Legislature passed,” and read in extra language not present in section 8-1567(i)(1).

Preferred Citation: Jacob B. Cantwell, I Can See Clearly Now “the” … Wait What You Need to be More Clear, 59 Washburn L.J. Online __ (2019).

The Disconnect of Student Loan Dischargeability in Bankruptcy [In re Engen, 561 B.R. 523 (Bankr. D. Kan. 2016)]

Colin T. Halpin | November 8, 2019 | Read this comment

Summary: Student loan debt represents an area of significant disconnect between nondischargeability and priority status. Many debts that are nondischargeable based on public policy reasons are also given priority status to promote preferred payment. However, student loan debts are not generally discharged through bankruptcy, nor are they normally given preferential treatment to assist in repayment. This disconnect will only continue to grow as the overall level of student loan debt increases. Immediate action is required to address this disconnect and create a solution to better help future student loan debtor.

Preferred Citation: Colin T. Halpin, The Disconnect of Student Loan Dischargeability in Bankruptcy, 59 Washburn L.J. Online __ (2019).

Prevailing v. Reasonable: Missouri’s Medical Coverage Following a Compensable Injury [Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. Ct. App. 2011)]

Aaron Greenbaum | November 1, 2019 | Read this comment

Summary: The Missouri Court of Appeals for the Western District held a work accident was the prevailing factor causing a torn lateral meniscus. The court also held that such compensable injury required medical treatment, amounting to a total knee replacement. The Court of Appeals reversed Missouri’s Labor and Industrial Relations Commission [“the Commission”] which held that the claimant’s work accident was not the prevailing factor requiring the need for a total knee replacement. The Commission affirmed the administrative law judge [“ALJ”] who found that the claimant’s arthritis was the main reason for the total knee replacement and that the claimant failed to prove the torn lateral meniscus was the main cause for her disability. According to the Court of Appeals, the torn lateral meniscus satisfied the definition of a “medical condition” in the prevailing factor statute, despite the tear not being the main cause of total knee replacement. The statute itself does not explicitly include the need for medical treatment. If Court of Appeals had interpreted the term “medical condition” to encompass medical treatment, it would have used the prevailing factor and affirmed the Commission. Additionally, to reach its finding, the court did not address the ALJ’s finding that the work accident was not the prevailing factor causing the disability. The court reversed the Commission’s holding and declared a compensable accident awarding treatment for a condition that was not primarily caused by the work accident. In doing so, court departed from a previous decision in the Missouri Court of Appeals Eastern District and the purpose of the prevailing factor. In the alternative, Kansas interprets medical treatment to be part of the arising out of standard helping distinguish personal injuries from work injuries.

Preferred Citation: Aaron J. Greenbaum, Prevailing v. Reasonable: Missouri’s Medical Coverage Following a Compensable Injury, 59 Washburn L.J. Online __ (2019).

Pragmatic Groundwater: Texas Judges Should Pragmatically Incorporate Hydrocarbon Doctrines into Groundwater Law [Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 825 (Tex. 2012)]

Jesse Nation | October 14, 2019 | Read this comment

Summary: Texas hydrocarbon law and groundwater law are similar but should not be the same. Courts and scholars should pragmatically think about incorporating Texas hydrocarbon law into Texas groundwater law because the very way of Texan life is at stake.

Preferred Citation: Jesse Nation, Pragmatic Groundwater: Texas Judges Should Pragmatically Incorporate Hydrocarbon Doctrines into Groundwater Law, 59 Washburn L.J. Online __ (2019).

Pump the Brakes: The Clean Water Act Does Not Cover Hydrologically Connected Groundwater [Kentucky Waterways Alliance v. Kentucky Utilities Company, 905 F.3d 925 (6th Cir. 2018); Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018)]

Jesse T. Nation | April 18, 2019 | Read this comment

Summary: The Supreme Court will favor an interpretation of the Clean Water Act (“CWA”) that does not include hydrologically connected groundwater as a point source. Placing groundwater within the jurisdiction of the CWA would violate textualism’s pump the brakes doctrine—environmental laws should not be interpreted in ways that exponentially increase jurisdiction of the act and displace the current regulatory schemes.

Preferred Citation: Jesse T. Nation, Pump the Brakes: The Clean Water Act Does Not Cover Hydrologically Connected Groundwater, 58 Washburn L.J. Online 111 (2019), http://washburnlaw.edu/wljonline/nation-pumpthebrakes

How Good is Good Enough for a “Good Cause” Extension Before the Patent Trial and Appeal Board? [Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336 (Fed. Cir. 2018)]

D. Dean Kirk II | April 4, 2019 | Read this comment

Summary: In the wake of recent Federal Circuit and Supreme Court decisions, the Patent Trial and Appeal Board has seen its discretion reduced and responsibilities expanded. As the Board’s responsibilities grow, but its options for deadline adjustment remain narrow, the Board is left with the options of joinder, good cause, or non-institution. When a case is improper for joinder, and non-institution would frustrate the Board’s purpose, the only remaining option is time adjustment for good cause. However, the Board has invoked good cause only once, under extremely unusual circumstances, and it remains unclear how the Board will use the standard in the future.

Preferred Citation: D. Dean Kirk II, How Good is Good Enough for a “Good Cause” Extension Before the Patent Trial and Appeal Board?, 58 Washburn L.J. Online 104 (2019), http://washburnlaw.edu/wljonline/kirk-goodcauseextension

The Kansas Supreme Court Makes a Policy Determination in the Guise of Statutory Interpretation [State v. Wetrich, 412 P.3d 984, 986 (Kan. 2018)]

Jacob B. Cantwell | March 21, 2019 | Read this comment

Summary: The Kansas Supreme Court incorrectly interpreted K.S.A. § 21-6811(e)(1) [formerly K.S.A. § 21-4711(e)]. The court found that when determining a defendant’s criminal history score, an out-of-state crime would only be “comparable” to a Kansas person felony if the elements of the out-of-state offense were identical to or narrower than the Kansas offense. The court incorrectly used statutory interpretation to come to this conclusion and did not adequately acknowledge Kansas precedent to determine that the identical-or-narrower test is required.

Preferred Citation: Jacob B. Cantwell, The Kansas Supreme Court Makes a Policy Determination in the Guise of Statutory Interpretation, 58 Washburn L.J. Online 96 (2019), http://washburnlaw.edu/wljonline/cantwell-policydetermination

Inter Partes Reviews Are Not Takings: You Never Had a Right [Brief for the Petitioner, Advanced Audio Devices, LLC v. HTC Corp., 139 S. Ct. 334 (2018) (No. 18-183), 2018 WL 3819620]

Jesse T. Nation | February 28, 2019 | Read this comment

Summary: Inter partes reviews (“IPRs”) are not takings. This Comment will argue the background principle defense is an affirmative defense that bars patent owners from winning a takings challenge against IPRs because if an IPR cancels a patent, the patent owner never had a right to the patent.

Preferred Citation: Jesse T. Nation, Inter Partes Reviews Are Not Takings: You Never Had a Right, 58 Washburn L.J. Online 89 (2019), http://washburnlaw.edu/wljonline/nation-interpartesreviews

How Copyright Law Can Help Courts Analyze Business Objections in Unconventional Artistry [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018)]

D. Dean Kirk II | February 14, 2019 | Read this comment

Summary: The U.S. Supreme Court reversed the Colorado Court of Appeals’ upholding of a cease-and-desist order issued by the Colorado Civil Rights Commission against a bakery and its religious owner. The owner alleged that compelling him to create cakes for same-sex weddings would violate both his rights to free speech and to free exercise of religion. The Supreme Court’s review was limited to the Commission’s discrimination against the owner. Unfortunately, any analysis of the protectable nature of wedding cakes or cake artistry was inherently frustrated by the parties’ disagreement over whether the owner had refused service for all goods, or only for wedding cakes. By limiting its analysis to the Commission’s impermissible hostility to religion, the Court could not provide additional guidance for what it admitted to be a complex balancing process. Future similar cases may benefit by importing recent copyright standards on sculpture protection to separate protectable expression from general business accommodation, sidestepping future disagreements by directly addressing the expression’s protectable nature through a field of law designed for the task.

Preferred Citation: D. Dean Kirk II, How Copyright Law Can Help Courts Analyze Business Objections in Unconventional Artistry, 58 Washburn L.J. Online 81 (2019), http://washburnlaw.edu/wljonline/kirk-copyright

Use of AMA Guides Under Kansas Workers Compensation Act [Johnson v. U.S. Food Service, 427 P.3d 996 (Kan. Ct. App. 2018)]

Aaron J. Greenbaum | January 31, 2019 | Read this comment

Summary: The Kansas Court of Appeals took action that the legislature previously declined to take in 2015 by repealing the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (“Sixth Edition”) as controlling law. Amidst the separation of powers issues, the Kansas Court of Appeals held the use of the Sixth Edition unconstitutional on its face. The Court struck portions of K.S.A. §§ 44-510d(b)(23), 44-510d(b)(24), and 44-510e(a)(2)(B), leaving the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition (“Fourth Edition”). The Court appropriately struck the Sixth Edition to maintain the Grand Bargain; however, the Kansas Supreme Court will be the final arbiter as to whether the Court of Appeals overstepped its judicial bounds. Courts, legislatures, and other national workers’ compensation proponents await the Kansas Supreme Court’s determination of the Sixth Edition’s constitutionality.

Preferred Citation: Aaron J. Greenbaum, Use of AMA Guides Under Kansas Workers Compensation Act, 58 Washburn L.J. Online 63 (2019), http://washburnlaw.edu/wljonline/greenbaum-AMAworkerscomp

Wrongful Discharge in Spite of Public Policy: Unreasonably Narrowing the Wrongful Discharge Exception [Yerra v. Mercy Clinic Springfield Communities, 536 S.W.3d 348 (Mo. Ct. App. 2017), reh’g and/or transfer denied (Nov. 22, 2017), transfer denied (Jan. 23, 2018)]

Hannah L. Woofter | January 17, 2019 | Read this comment

Summary: The Missouri Court of Appeals recently overturned a whistleblower instruction for a plaintiff-employee who alleged she was wrongfully terminated in violation of public policy. The employee alleged she was terminated after reporting, in good faith, that her hospital- employer was double-billing patients. The statute she cited for support requires protections for employees who in good faith report allegedly violative conduct. However, the court determined that the employee’s reasonable belief her employer engaged in wrongful conduct was insufficient. It determined a whistleblower instruction was only appropriate if an employer actually engaged in the alleged conduct. Requiring an employee prove the hospital created fraud makes the wrongful discharge doctrine nearly impossible to satisfy and cuts against its purpose—to protect employees who protect the public.

Preferred Citation: Hannah L. Woofter, Wrongful Discharge in Spite of Public Policy: Unreasonably Narrowing the Wrongful Discharge Exception, 58 Washburn L.J. Online 53 (2019), http://washburnlaw.edu/wljonline/woofter-wrongfuldischarge

Estop Me If You’ve Heard This One Before: When Judicial Integrity Is Not Protected by the Doctrine of Judicial Estoppel [Vacca v. Missouri Dep’t of Labor & Indus. Relations, 2017 WL 5146154 (Mo. Ct. App. Nov. 7, 2017), transferred to Mo. S. Ct. (Mar. 6, 2018)]

Morgan E. Hammes | November 29, 2018 | Read this comment

Summary: Matthew Vacca, Administrative Law Judge for the Workers’ Compensation Division, filed for divorce and asked for maintenance from his wife because he was unable to work. He also filed a lawsuit against his employer for retaliation and wrongful termination where he stated he was capable of continuing to work with accommodations. The Missouri Court of Appeals ruled the doctrine of judicial estoppel, which prevents parties from making inconsistent statements to two courts, did not apply. However, the purpose of the doctrine is to promote judicial integrity. An Administrative Law Judge, who acts as an officer of the court, should not be able to abuse the same system he is charged with upholding by making contradictory statements to the court.

Preferred Citation: Morgan E. Hammes, Estop Me If You’ve Heard This One Before: When Judicial Integrity Is Not Protected by the Doctrine of Judicial Estoppel, 58 Washburn L.J. Online 43 (2018), http://washburnlaw.edu/wljonline/hammes-judicialestoppel

Lost in Translation: Colorado’s Supreme Court Overlooking the Requirement of a Knowing and Intelligent Miranda Rights Waiver [People v. Nguyen, 406 P.3d 836 (Colo. 2017)]

Benjamin B. Donovan | November 15, 2018 | Read this comment

Summary: In a 4-3 opinion, the Colorado Supreme Court reversed the district court’s suppression order, holding the interpreter adequately conveyed the defendant’s Miranda rights to him. In so ruling, the majority failed to examine the totality of the circumstances to determine if the defendant adequately understood his rights before concluding the defendant’s waiver was knowing and intelligent.

Preferred Citation: Benjamin B. Donovan, Lost in Translation: Colorado’s Supreme Court Overlooking the Requirement of a Knowing and Intelligent Miranda Rights Waiver, 58 Washburn L.J. Online 34 (2018), http://washburnlaw.edu/wljonline/donovan-mirandarights

Paging Constitutional Protections: Interrogating Vulnerable Suspects In Hospitals [People v. Sampson, 404 P.3d 273 (Colo. 2017)]

Bretton William Hake Kreifel | November 1, 2018 | Read this comment

Summary: In People v. Sampson, the Colorado Supreme Court held that a police interrogation of a suspect while he was receiving medical treatment for a stab wound in a hospital did not violate the suspect’s rights. In doing so, the Colorado Supreme Court allowed police to continue to use arguably coercive interrogation techniques. This appears to run counter to one of the goals of Miranda warnings, which is to ensure that statements made during an interrogation are voluntary.

Preferred Citation: Bretton William Hake Kreifel, Paging Constitutional Protections: Interrogating Vulnerable Suspects In Hospitals, 58 Washburn L.J. Online 25 (2018), http://washburnlaw.edu/wljonline/kreifel-interrogations

Consent vs. Authority: An Examination of the Tenth Circuit’s View of Consensual Police Encounters [United States v. Hernandez, 847 F.3d 1257 (10th Cir. 2017)]

Timothy L. Carney | October 18, 2018 | Read this comment

Summary: The Tenth Circuit Court of Appeals held two Denver Police Officers did not have reasonable suspicion to detain an individual. The court also found the officers did not have proper consent when they used a “show of authority” in requesting the individual stop walking while talking with them. The court erred in finding that consent did not exist in this case.

Preferred Citation: Timothy L. Carney, Consent vs. Authority: An Examination of the Tenth Circuit’s View of Consensual Police Encounters, 58 Washburn L.J. Online 18 (2018), http://washburnlaw.edu/wljonline/carney-policeencounters

Registration Approach vs. Application Approach: Section 411(a)’s Copyright Registration Requirement [Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 856 F.3d 1338 (11th Cir. 2017)]

Hayley N. Sipes | October 04, 2018 | Read this comment

Summary: The term “registration” in section 411(a) of the Copyright Act receives different treatment among federal circuit courts. The Eleventh Circuit Court of Appeals held that registration only occurs after a copyright is registered by the Register of Copyrights, adopting the “registration approach.” The Tenth Circuit also follows this approach. The Fifth and Ninth Circuits, however, apply the “application approach,” holding that filing an application is sufficient to show registration under section 411(a) to bring an infringement suit.

Preferred Citation: Hayley N. Sipes, Registration Approach vs. Application Approach: Section 411(a)’s Copyright Registration Requirement, 58 Washburn L.J. Online 11 (2018), http://washburnlaw.edu/wljonline/sipes-copyright

Analyzing the Oklahoma Supreme Court’s Peculiar Expansion of Dram Shop Liability [Boyle v. ASAP Energy, Inc., 408 P.3d 183 (Okla. 2017)]

Curry P. Sexton | September 20, 2018 | Read this comment

Summary: Following a tragic collision at the hands of an intoxicated driver, the Oklahoma Supreme Court reversed the trial court and court of appeals and expanded dram shop liability within its state by holding that Fast Lane Stores, Inc. had a duty to desist from selling low-point beer to clearly intoxicated individuals. Oklahoma had never enforced this duty upon vendors selling to adult individuals for off-premises use.

Preferred Citation: Curry P. Sexton, Analyzing the Oklahoma Supreme Court’s Peculiar Expansion of Dram Shop Liability, 58 Washburn L.J. Online 1 (2018), http://washburnlaw.edu/wljonline/sexton-dramshopliability

Short URL for this page:
http://washburnlaw.edu/wljonline

Volume 58 Cases Reviewed