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Washburn Law Journal Online, Volume 61

Bad Education: Does the New Kansas Law Criminalizing Falsely Representing Oneself as an Election Official Pass Constitutional Muster? [K.S.A. § 25-2438 / League of Women Voters of Kansas, et al., v. Schwab (Kan. 3d Dist. Ct. 2021) (2021-CV-000299)] 

Taylor Murray | April 29, 2022 | Read this comment

Summary: The Kansas Legislature enacted K.S.A. § 25-2438, which makes it a felony to falsely represent oneself as an election official. Kansas voter education groups filed suit, claiming that the wording of the statute keeps them from engaging in protected political speech because of fear of prosecution. The Shawnee County District Court rejected the plaintiffs’ request for a preliminary injunction without fully acknowledging the confusion generated by the statute’s construction.

Preferred Citation: Taylor Murray, Bad Education: Does the New Kansas Law Criminalizing Falsely Representing Oneself as an Election Official Pass Constitutional Muster?, 61 Washburn L.J. Online (2022) 97,

Qualified Apathy: The Tenth Circuit Concedes Jurisdiction Over Constitutional Questions [Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021).]

John Spizak | April 28, 2022 | Read this comment

Summary: The Tenth Circuit Court of Appeals reversed the district court’s denial of qualified immunity asserted by Denver police officers against a claim that they violated a man’s First Amendment free speech right. The man alleged that the officers intimidated him to seize a video he made of the officers violently arresting a suspect in public. While the court correctly determined that a public right to record a public police action was not clearly established at the time of the incident in the Tenth Circuit, it declined to determine whether the Constitution provided such a right. Even though courts have discretion over whether such an analysis is needed in a given case, the court’s refusal, in this case, to assess whether the right to record police in public exists conflicted with the court’s exclusive jurisdiction over constitutional interpretation.

Preferred Citation: John Spizak, Qualified Apathy: The Tenth Circuit Concedes Jurisdiction Over Constitutional Questions, 61 Washburn L.J. Online 83 (2022),

Nice Try, NCAAThe Sherman Antitrust Act Applies to You, Too [Nat'l Collegiate Athletic Ass'n v. Alston, 141 S. Ct. 2141 (2021)]

Tymber W. Long | April 27, 2022 | Read this comment

Summary: In this long-awaited decision, the Supreme Court in National Collegiate Athletic Association v. Alston upheld the Northern District Court of California’s finding that the National Collegiate Athletic Association’s (“NCAA”) limits on student-athlete compensation violates the Sherman Antitrust Act of 1890. The NCAA argued its limits were procompetitive for two reasons: the limits drive consumer demand for amateur athletics and improve student-athletes’ education. However, the district court and Supreme Court saw through these baseless conclusions and cast a blow to the NCAA’s amateurism cornerstone. Although the Alston decision has the potential to be a huge step in sports jurisprudence, the holding could be moot if athletic conferences decide to continue the practice of limiting student-athlete compensation.

Preferred Citation: Tymber W. Long, Nice Try, NCAA—The Sherman Antitrust Act Applies to You, Too, 61 Washburn L.J. Online 71 (2022),

Conchs on Cruises: Taking the "Sovereign State of Mind" Too Far in Key West's New Cruise Ordinance [Key West, Fla., Code of Ordinances pt. I, art. I, § 1.09 (2021)]

Madlaine N. Farmer | April 27, 2022 | Read this comment

Summary: This Comment argues that Key West’s recently enacted ordinance––which limits the total amount of people allowed to disembark to 1,500 per day, prohibits cruise ships with 1,300 or more passengers from docking and prioritizes ships with the best records on health and the environment––conflicts with maritime law because it destroys harmony and uniformity in interstate and maritime commerce. State and local governments may use their police powers to implement laws that abate pollution; however, local laws may not regulate the primary conduct of vessels to the extent it disrupts the uniformity that is essential to maritime activity. Key West’s ordinance regulates primary conduct and, therefore, is invalid under maritime law.

Preferred Citation: Madlaine N. Farmer, Conchs on Cruises: Taking the "Sovereign State of Mind" Too Far in Key West's New Cruise Ordinance, 61 Washburn L.J. Online 57 (2021),


Juvenile Justice: Authorizing Prosecution as an Adult in Kansas [State v. Vonachen, 476 P.3d 774 (Kan. 2020)]

Mackenzie K. McCoy | December 15, 2021 | Read this comment

Summary: In December 2020, the Kansas Supreme Court affirmed the Reno Coun­ty District Court’s decision to authorize adult prosecution of fourteen-year-old defendant, Samuel Vonachen. The district court relied upon Kan­sas Statute section 38-2347(d), which enumerates eight factors a court should consider when determining whether to grant the state’s mo­tion to authorize prosecuting a juvenile as an adult. Typically, in Kansas, an individual under the age of eighteen is adjudicated as a juvenile offender. However, if the factors in Kansas Statute section 38-2347(d) are established by a preponderance of the evidence showing that adult prosecution is warranted, the court may grant the state’s motion. The district court did not abuse its discretion by appropriately and accurately applying the factors of Kansas Statute section 38-2347(d) to the facts of Samuel’s case. To overcome the statutory factors outlined in Kansas Statute section 38-2347(d), Samuel needed an argu­ment that would downplay the seriousness of his crimes and demon­strate that society would be better served with him spending time in a juvenile facility rather than spending the rest of his life in prison. However, Samuel failed to do so. Therefore, the Kansas Supreme Court correctly affirmed the district court’s decision.

Preferred Citation: Mackenzie K. McCoy, Juvenile Justice: Authorizing Prosecution as an Adult in Kansas, 61 Washburn L.J. Online 45 (2021),

The Kids Are Not All Right [M.B. Howard, No. 18-2617-DDC-GEB, 2021 U.S. Dist. LEXIS 15801 (D. Kan. Jan. 28, 2021)]

Brigid E. Markey | December 13, 2021 | Read this comment

Summary: For years, Kansas’s foster care children have endured dangerous and negligent environments while in the state’s custody. Children have been forced into constant placements, often being shuffled between homes and facilities with little notice. As a result, numerous foster care children have experienced sleeping arrangements in inadequate areas like motels and offices. These constant placements have traumatized the children by exposing them to predators, limiting access to education, and hindering their access to mental health treatments. In 2018, numerous children in the foster care system brought a class action lawsuit against the State of Kansas for its egregious handling of the children’s health and safety. This suit resulted in a settlement agreement that requires Kansas to make strict improvements within its foster care system. However, due to the required massive overhaul of the system and the ongoing COVID-19 pandemic, it remains to be seen whether Kansas will fulfill the conditions the federal court order demands.

Preferred Citation: Brigid E. Markey, The Kids Are Not All Right, 61 Washburn L.J. Online 37 (2021),

It's Unanimous: Ending Racial Bias in the Jury Box [Ramos v. Louisiana, 140 S. Ct. 1390 (2019).]

Belinda J. McCaskey | October 21, 2021 | Read this comment 

Summary: The question presented to the Court is whether an individual’s Sixth Amendment right to a jury trial requires states to impose an unanimity requirement on a criminal prosecution verdict. The Sixth Amendment is made applicable to the states via incorporation through the Fourteenth Amendment. Two states, Louisiana and Oregon, have long convicted people with a 10-2 verdict. The Court held in Ramos that the Sixth Amendment’s unanimity requirement applies to both state and federal criminal trials, thus ending a century-long failure to recognize racial bias in the jury box. Despite the law being rooted in racism, the Court barely acknowledges this fact, and when it does—it discounts the impact. Because the Court can and does shape our social consciousness, it must do better in taking care of its words.

Preferred Citation: Belinda J. McCaskey, It's Unanimous: Ending Racial Bias in the Jury, 61 Washburn L.J. Online 25 (2021),

Instability Ahead! Kansas Parents Should Proceed with Cuation: Why a De Facto Parentage Balancing Test Is the Next Logical Step After In re Parentage of M.F., 475 P.3d 642 (Kan. 2020)

Rylee M. Broyles | September 29, 2021 | Read this comment

Summary: In In re M.F., the Kansas Supreme Court finally laid to rest the confusion surrounding the issue of whether written co-parenting agreements are required to recognize legal parentage of a nonbiological parent in an Artificial Reproductive Technology (“ART”) case. Its proclamation: written co-parenting agreements are not required. This clarification—as necessary as it was—left in its wake a bigger question: what is required to establish legal parentage for nonbiological parents? This unresolved question should be answered in the form of a de facto parent balancing test. Such a test will provide Kansas courts with the stability of predetermined elements while still giving them the flexibility to consider the totality of the circumstances in an area of the law where every case is unique.

Preferred Citation: Rylee M. Broyles, Instability Ahead!  Kansas Parents Should Proceed with Caution: Why a De Facto Parentage Balancing Test Is the Next Logical Step After In re Parentage of M.F., 475 P.3d 642 (Kan. 2020), 61 Washburn L.J. Online 13 (2021),

Res Judi-can't-a: Can't a Plaintiff Get a Hearing on the Merits? [479 P.3d 482 (Kan. Ct. App. 2020).]

Emily R. Brandt | September 15, 2021 | Read this comment

Summary: The Kansas Supreme Court’s interpretation of res judicata in Stanfield v. Osborne Industries resulted in Kansas plaintiffs’ being denied their proverbial day in court. The court held that once a federal court dismisses state law claims without prejudice by declining to exercise supplemental jurisdiction over them, res judicata bars those claims from any subsequent lawsuit in a state court. Although such a scenario is not common, the Stanfield rule has shuttered courtroom doors to plaintiffs whose state law claims never received a hearing on the merits. Kansas should return to conventional principles of res judicata and permit plaintiffs to go forward with their state law claims in state court after a federal court dismisses them without adjudicating them on the merits.

Preferred Citation: Emily R. Brandt, Res Judi-can't-a: Can't a Plaintiff Get a Hearing on the Merits?, 61 Washburn L.J. Online 1 (2021),

Volume 61 Cases Reviewed