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Washburn Law Journal Online Archive

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, https://washburnlaw.edu/wljonline/murray-bad-education/.

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), https://washburnlaw.edu/wljonline/spizak-qualified-apathy.

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), https://washburnlaw.edu/wljonline/long-nice-try.

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), https://washburnlaw.edu/wljonline/farmer-conchs-on-cruises.

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), https://washburnlaw.edu/wljonline/mccoy-juvenile-justice.

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), https://washburnlaw.edu/wljonline/markey-kids-are-not-all-right.

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), https://washburnlaw.edu/wljonline/mccaskey-ending-racial-bias.

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), https://washburnlaw.edu/wljonline/broyles-instability-ahead.

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), https://washburnlaw.edu/wljonline/brandt-res-judi.

Mo’ Money, Mo’ Problems: An Analysis of In Re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation [958 F.3d 1239 (9th Cir. 2020).]

Benjamin S. Bigham | May 28, 2021 | Read this comment

Summary: In In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation, the Ninth Circuit Court of Appeals held that the NCAA violated Section I of the Sherman Act by placing restrictions on educational benefits available to student-athletes as forms of compensation. This opinion has now been granted a writ of certiorari by the U.S. Supreme Court and will be reviewed to determine if the lower court correctly held that the NCAA violated federal antitrust laws with its current compensation structure. This Comment will evaluate likelihood of success of the holding rendered by the Ninth Circuit Court of Appeals in In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation. Ultimately, this Comment will describe why—given the recent developments in case law concerning NCAA compensation rules, the narrow holdings in the lower courts, how concretely the relevant market is defined, and the shifting public opinion in favor of compensating student-athletes—the Supreme Court should affirm these holdings and find that the NCAA has violated Section I of the Sherman Act.

Preferred Citation: Benjamin S. Bigham, Mo’ Money Mo’ Problems: An Analysis of In Re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation, 60 Washburn L.J. Online 113 (2021), https://washburnlaw.edu/wljonline/bigham-mo-money-mo-problems.

Boston Bomber’s Death Sentence Should Not Have Been Vacated Based on Insufficient Voir Dire [United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020).]

MacKenzie K. McCoy | May 5, 2021 | Read this comment

Summary: In July 2020, the United States Court of Appeals for the First Circuit vacated the death sentence imposed by the United States District Court for the District of Massachusetts against Boston Marathon bomber, Dzhokhar Tsarnaev. The court of appeals stated that the voir dire process was inadequate due to prejudicial pretrial publicity. Voir dire is a process in which potential juror impartiality or bias is assessed through an attorney or judge asking prospective jurors specific questions. Judges have broad discretion during voir dire, and it does not have to follow an exact formula. The district judge in this case gave over one thousand potential jurors a 100-item questionnaire that covered their backgrounds, social media habits, views on the death penalty, and exposure to pretrial publicity. Given the magnitude and severity of the case, the district judge conducted voir dire in an appropriate and efficient manner and, therefore, the court of appeals should not have vacated the death sentence based on an insufficient voir dire process.

Preferred Citation: MacKenzie K. McCoy, How the Supreme Court Got It Wrong: Kansas v. Glover, 60 Washburn L.J. Online 103 (2021), https://washburnlaw.edu/wljonline/mccoy-boston-bomber.

How the Supreme Court Got It Wrong: Kansas v. Glover [(Glover III), 140 S. Ct. 1183 (2019).]

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

Summary: The United States Supreme Court held that a traffic stop based only on an assumption that the owner of the vehicle is the driver is reasonable, so long as the officer does not have any information negating the inference. This ruling reverses the Kansas Supreme Court which held that such a stop was unreasonable and violated the protections provided by the Fourth Amendment. The U.S. Supreme Court emphasized the narrowness of the decision and reiterated that each stop is individualized and subject to the reasonableness standard; however, it reached the wrong conclusion.

Preferred Citation: Belinda J. McCaskey, How the Supreme Court Got It Wrong: Kansas v. Glover, 60 Washburn L.J. Online 95 (2021), https://washburnlaw.edu/wljonline/mccaskey-glover.

Dismantling the Great Writ [Gage v. Chappell, 793 F.3d 1159 (9th Cir. 2015).]

Brigid E. Markey | April 7, 2021 | Read this comment

Summary: George Gage was convicted of sex crimes against a minor. Although evidence at his first trial was enough to hang the jury, he faced another trial. Ultimately, Gage was convicted and sentenced to 70 years of imprisonment. A close inspection of his case reveals a growing trend in the criminal justice system—federal legislation has created intensive barriers to claims of innocence. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has worked to dismantle citizens’ ability to petition against their incarceration through habeas corpus. Before the AEDPA’s introduction, prisoners had vast freedom to petition their sentences at a federal level. Now, states are largely left alone in their criminal adjudications. This deference and added barriers from the AEDPA create a startling framework of Americans’ rights within the penal system.

Preferred Citation: Brigid E. Markey, Dismantling the Great Writ, 60 Washburn L.J. Online 83 (2021), https://washburnlaw.edu/wljonline/markey-dismantling-great-writ.

Myth Buster: Private Student Loans May Now
Be Discharged in States Within the Tenth
Circuit [McDaniel v. Navient Sols., LLC (In re
McDaniel), 973 F.3d 1083 (10th Cir. 2020).]

Madlaine N. Farmer | March 26, 2021 | Read this comment

Summary: The United States Court of Appeals for the Tenth Circuit affirmed the Colorado Bankruptcy Court’s discharge of private student loans because the debtor did not use the loans exclusively to pay for education, and as a result, the loans were found not to be within the meaning of 11 U.S.C. § 523(a)(8). All courts should adopt the Tenth Circuit’s discharge of private student loans, which should be treated similarly to general consumer loans. Discharging private student loans promotes the purpose of the bankruptcy system—to supply a debtor with a fresh start—and equitable application of the law. Additionally, discharge of debt stimulates the economy and reduces universities’ incentive to increase tuition costs.

Preferred Citation: Madlaine N. Farmer, Myth Buster: Private Student Loans May Now Be Discharged in States Within the Tenth Circuit, 60 Washburn L.J. Online 69 (2021), https://washburnlaw.edu/wljonline/farmer-private-student-loans.

Nonbiological Parents Beware: How the Court in In re W.L. Incorrectly Applied Frazier v. Goudschaal as a Result of Its Prejudice for a Nonbiological Parent [In re W.L., 441 P.3d 495 (Kan. Ct. App. 2019), review granted (Sept. 3, 2019).]

Rylee M. Broyles | March 17, 2021 | Read this comment

Summary: In In re W.L., a Kansas appellate court confidently proclaimed that Kansas law requires a written co-parenting agreement in order to recognize parentage of a nonbiological parent in an artificial reproductive technology (“ART”) case because the Kansas Supreme Court in Frazier v. Goudschaal said so. The only problem? That was not the holding in Frazier v. Goudschaal. An analysis of both cases suggests that the appellate court misstated the law in order to procure a particular outcome against an unfavorable nonbiological parent. As a result, it is likely that the Kansas Supreme Court will reverse the appellate court’s holding in In re W.L. when it reviews the case because the appellate court’s holding fails to consider Kansas’s public policy in ART cases.

Preferred Citation: Rylee M. Broyles, Nonbiological Parents Beware: How the Court in In re W.L. Incorrectly Applied Frazier v. Goudschaal as a Result of Its Prejudice for a Nonbiological Parent, 60 Washburn L.J. Online 57 (2021), https://washburnlaw.edu/wljonline/broyles-nonbiological-parents-beware.

Am I Going Insane or Did Kansas Abolish the Insanity Defense? [Kahler v. Kansas, 140 S. Ct.
1021 (2020).]

Emily R. Brandt | March 5, 2021 | Read this comment

Summary: The U.S. Supreme Court held that due process does not require states to adopt an insanity test that turns on a criminal defendant’s ability to recognize that their crime was morally wrong. A criminal defendant faces a high bar because a state rule about criminal liability violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people. The scope of criminal liability is complex and ever-changing, so its regulation is best left to states. The insanity defense is particularly complex due to the ever-evolving understandings of mental illness. Therefore, a particular version of the insanity defense cannot be constitutionalized.

However, the appropriate guiding factor in a due process analysis is history. Here, the Court analyzed the due process claim using complexity as its guiding factor. The complexity of a legal issue cannot replace the established rule that fundamental rights and liberties are those that are deeply rooted in this Nation’s history and tradition, implicit in the concept of ordered liberty, and essential to maintaining a fair and enlightened system of justice.

Preferred Citation: Emily R. Brandt, Am I Going Insane or Did Kansas Abolish the Insanity Defense?, 60 Washburn L.J. Online 45 (2021), https://washburnlaw.edu/wljonline/brandt-insanity.

To Appear or Not to Appear: An Explanation of General Appearance and When the Right to Object to Personal Jurisdiction Can Be Waived [In re Marriage of Williams, 417 P.3d 1033 (Kan. 2018).]

Benjamin S. Bigham | February 24, 2021 | Read this comment

Summary: In In re Marriage of Williams, the court found an implied waiver of the right to object to personal jurisdiction through a general appearance but failed to articulate any definition for it. The court concluded that a physical appearance by a defendant may constitute a general appearance, but it offered little precedential value for practitioners trying to establish or defend the occurrence of a general appearance that waived a defendant’s right to object to personal jurisdiction. This Comment clarifies what actions by a defendant will constitute a general appearance, thereby waiving the right to object to personal jurisdiction, by consolidating all available Kansas caselaw to create a workable definition for Kansas practitioners moving forward.

Preferred Citation: Benjamin S. Bigham, To Appear or Not to Appear: An Explanation of General Appearance and When the Right to Object to Personal Jurisdiction Can Be Waived, 60 Washburn L.J. Online 35 (2021), https://washburnlaw.edu/wljonline/bigham-generalappearance.

The Kansas Corporate Practice of Medicine [H.B. 2119, 88th Leg., Reg. Sess. (Kan. 2019).]

Christopher L. Grause | December 2, 2020 | Read this comment

Summary: The Kansas Corporate Practice of Medicine Doctrine forbids a general corporation from employing a physician with few exceptions. However, in 2019, the Kansas Legislature passed H.B. 2119, which recognizes such exceptions and allows corporations to employ physicians upon certification from the Board of Healing Arts. H.B. 2119, however, has not been interpreted by the Kansas Supreme Court. This newly-enacted bill could restrict the corporate practice of medicine, rather than expand it as intended.

Preferred Citation: Christopher L. Grause, The Kansas Corporate Practice of Medicine, 60 Washburn L.J. Online 29 (2020), https://washburnlaw.edu/wljonline/grause-medicine.

Post Wayfair: The Unconstitutionality of Kansas’s Taxation of Online Retailers [South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).]

Kayla K. Dieker | November 11, 2020 | Read this comment

Summary: The United States Supreme Court, in its Wayfair decision, changed the way states tax online retailers. The Court overruled its prior physical presence requirement and, instead, held South Dakota had authority to tax retailers who exceed $100,000 in gross revenue or have more than 200 transactions in a calendar year. However, the Court was unclear about what quantity of business constitutes a substantial nexus. The Kansas Department of Revenue, in its Notice 19-04, likely does not satisfy the substantial nexus test because it does not include a safe harbor for online retailers doing small quantities of business in Kansas.

Preferred Citation: Kayla K. Dieker, Post Wayfair: The Unconstitutionality of Kansas’s Taxation of Online Retailers, 60 Washburn L.J. Online 19 (2020), https://washburnlaw.edu/wljonline/dieker-wayfair.

Damage Without Damages Caps [Hilburn v. Enerpipe Ltd., 442 P.3d 509 (Kan. 2019).]

Evan Hathaway | October 21, 2020 | Read this comment

Summary: The Kansas Supreme Court ruled that capping the recovery of noneconomic damages violates the right to a jury trial found in the Kansas Constitution. In so ruling, the court disregarded precedent, violating the doctrine of stare decisis. This ruling could result in invalidating laws that are beneficial to the public and the undermining of judicial stability.

Preferred Citation: Evan Hathaway, Damage Without Damages Caps, 60 Washburn L.J. Online 11 (2020), https://washburnlaw.edu/wljonline/hathaway-hilburn.

Filling in the Gaps: A Refutation of the Supreme Court’s Most Recent Partisan Gerrymandering Decision in Rucho v. Common Cause, [139 S. Ct. 2484 (2019)].

Dylan P. Wheeler | September 30, 2020 | Read this comment

Summary: In Rucho v. Common Cause, the United States Supreme Court once again took on the issue of partisan gerrymandering, and whether such claims are justiciable at all. As with its previous decisions addressing this issue, the Court found that such claims present political questions the judiciary is not empowered to resolve due to a lack of politically neutral and manageable standards for resolving them. This Comment proposes that such standards do in fact exist, and suggests how these standards should be applied in future cases addressing partisan gerrymandering.

Preferred Citation: Dylan P. Wheeler, Filling in the Gaps: A Refutation of the Supreme Court’s Most Recent Partisan Gerrymandering Decision in Rucho v. Common Cause, 60 Washburn L.J. Online 1 (2020), https://washburnlaw.edu/wljonline/wheeler-gerrymandering.