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Washburn Law Journal Online Archive

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).

Kaylal 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)] by Aaron J. Greenbaum 59 Washburn Law Journal Online 81

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 T. 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).

Double Entendre under the MHRA: When a Transgender Teenager Pleads Discrimination on the Grounds of Sex but It Does Not Satisfy Claims of Sex Discrimination [R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., No. WD 80005, 2017 WL 3026757 (Mo. Ct. App. July 18, 2017), cause ordered transferred to Mo. S. Ct. (Jan. 23, 2018)]

Hannah L. Woofter | April 23, 2018 | Read this comment

Summary: The Missouri Court of Appeals for the Western District affirmed the district court's dismissal of a transgender male teen's claims of discrimination under the Missouri Human Rights Act. The teen alleged discrimination on the grounds of sex when his school district denied him access to the boys’ locker rooms and restrooms. The court erred when it analyzed legislative history and looked beyond the four corners of the petition to determine what "on the grounds . . . of sex" meant, when R.M.A.'s claim, on its face, alleged sex discrimination. Like Title VII, the MHRA is a remedial statute which must be construed broadly; the court's dismissal goes against the notion that human rights violations should be heard on the merits and decided by a jury.

Preferred Citation: Hannah L. Woofter, Double Entendre under the MHRA: When a Transgender Teenager Pleads Discrimination on the Grounds of Sex but It Does Not Satisfy Claims of Sex Discrimination, 57 Washburn L.J. Online 52 (2018), http://washburnlaw.edu/wljonline/woofter-MHRAdoubleentendre

Double Entendre under the MHRA

Wake Up! The Proper Error Analysis for the Case of a Sleeping Judge [State v. Johnson, 391 P.3d 711 (Kan. App. 2017), cert. granted Sept. 29, 2017.]

Morgan E. Hammes | April 3, 2018 | Read this comment

Summary: The Kansas Court of Appeals held when a judge falls asleep on the bench it constitutes a structural error because it permeates the entire trial. However, the U.S. Supreme Court has only formally recognized a handful of structural errors and judges falling asleep should not be added to this narrow list. Instead, the Kansas Court of Appeals should have applied the harmless-error doctrine and found the judge who fell asleep while presiding over a criminal trial properly mitigated the situation, and upheld the defendant’s conviction.

Preferred Citation: Morgan E. Hammes, Wake Up! The Proper Error Analysis for the Case of a Sleeping Judge, 57 Washburn L.J. Online 44 (2018), http://washburnlaw.edu/wljonline/hammes-sleepingjudges

Wake Up! The Proper Error Analysis for the Case of a Sleeping Judge

Retreating from Constitutional Protections: Requiring Registration on Offender Registries Without a Jury [State v. Huey, 399 P.3d 211 (Kan. 2017)]

Bretton William Hake Kreifel | March 23, 2018 | Read this comment

Summary: In State v. Huey, the Kansas Supreme Court held requiring registration under the Kansas Offender Registration Act was not a punishment. In doing so the Kansas Supreme Court authorized judges to find facts necessary to force registration. Darnell Lee Huey was required to register for fifteen years as a violent offender after a judge decided he had used a dangerous weapon in the commission of a crime. While offender registration is a critically useful tool in our society, registration on such a public and pervasive list is something that should be decided by a jury.

Preferred Citation: Bretton William Hake Kreifel, Retreating from Constitutional Protections: Requiring Registration on Offender Registries Without a Jury, 57 Washburn L.J. Online 37 (2018), http://washburnlaw.edu/wljonline/kreifel-offenderregistries

Retreating from Constitutional Protections: Requiring Registration on Offender Registries Without a Jury

Suspicious Reasoning: How the Tenth Circuit's Reasonable Suspicion Analysis Went Wrong [Vasquez v. Lewis, 834 F.3d 1132 (10th Cir. 2016)]

Timothy L. Carney | March 7, 2018 | Read this Comment

Summary: The Tenth Circuit Court of Appeals held that two law enforcement officers did not have reasonable suspicion to detain and search an individual’s vehicle for drugs. The court erred in using the “divide-and-conquer” approach to determine whether reasonable suspicion existed, and because it never properly answered that threshold question, it also erred by finding the officers were not entitled to qualified immunity.

Preferred Citation: Timothy L. Carney, Suspicious Reasoning: How the Tenth Circuit's Reasonable Suspicion Analysis Went Wrong, 57 Washburn L.J. Online 29 (2018), http://washburnlaw.edu/wljonline/carney-reasonablesuspicionanalysis

Suspicious Reasoning: How the Tenth Circuit's Reasonable Suspicion Analysis Went Wrong

Weeding out Marijuana Businesses with RICO [Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017)]

Hayley N. Sipes | February 21, 2018 | Read this Comment

Summary: The Tenth Circuit Court of Appeals held that private landowners can bring a civil claim under the Racketeer Influenced Corrupt Organizations Act (“RICO”) against marijuana growers and their associates alleging an injury to their land. This holding will open the door for numerous lawsuits to be brought against those parties involved in the marijuana business and could have a crippling effect on the industry.

Preferred Citation: Hayley N. Sipes, Weeding out Marijuana Businesses with RICO, 57 Washburn L.J. Online 21 (2018), http://washburnlaw.edu/wljonline/sipes-marijuanaandrico

Weeding out Marijuana Businesses with RICO

Analyzing the Kansas Supreme Court’s Sweeping Prohibition of Identity Theft Prosecution Under Kansas State Law [State v. Garcia, 401 P.3d 588 (Kan. 2017)]

Curry P. Sexton | February 6, 2018 | Read this Comment

Summary: The Kansas Supreme Court held that federal law and the Immigration Reform Control Act of 1986 expressly preempt Kansas identity theft prosecution of undocumented workers. The court erred by overtly interpreting federal law to satisfy its preemption analysis and dispose of the prosecution. The State should have unbridled authority to prosecute undocumented workers for crimes unrelated to illegal alien status.

Preferred Citation: Curry P. Sexton, Analyzing the Kansas Supreme Court's Sweeping Prohibition of Identity Theft Prosecution Under Kansas State Law, 57 Washburn L.J. Online 14 (2018), http://washburnlaw.edu/wljonline/sexton-identitytheft

Analyzing the Kansas Supreme Court’s Sweeping Prohibition of Identity Theft Prosecution Under Kansas State Law

Scrutinizing the Scope of Oklahoma’s Statutory Pugh Clause [Stephens Production Co. v. Tripco, Inc., 389 P.3d 365 (Okla. Civ. App. 2016)]

Ethan D. Thompson | January 23, 2018 | Read this Comment

Summary: The Oklahoma Court of Civil Appeals held that the Oklahoma statutory Pugh Clause does not apply to a statutorily created unit because the Unitization Act addresses producing wells, while the Pugh Clause addresses pre-production leases. The court erred by failing to recognize that the purposes of both statutes are to prevent waste, and the court’s interpretation created opportunities for more waste.

Preferred Citation: Ethan D. Thompson, Scrutinizing the Scope of Oklahoma's Statutory Pugh Clause, 57 Washburn L.J. Online 8 (2018), http://washburnlaw.edu/wljonline/thompson-pughclause

Scrutinizing the Scope of Oklahoma's Statutory Pugh Clause

Unreasonable Suspicion: Kansas’s Adoption of the Owner-as-Driver Rule [State v. Glover, 400 P.3d 182 (Kan. Ct. App. 2017)]

Benjamin B. Donovan | January 23, 2018 | Read this Comment

Summary: The Kansas Court of Appeals adopted a bright-line rule that reasonable suspicion exists for a traffic stop when the vehicle's registered owner has a suspended license and the officer is unaware of evidence that the owner is not the driver. This rule fails to meet the reasonableness requirement of the Fourth Amendment of the United States Constitution.

Preferred Citation: Benjamin B. Donovan, Unreasonable Suspicion: Kansas’s Adoption of the Owner-as-Driver Rule, 57 Washburn L.J. Online 1 (2018), http://washburnlaw.edu/wljonline/donovan-ownerasdriverrule

Unreasonable Suspicion: Kansas’s Adoption of the Owner-as-Driver Rule