MICHAEL DUENES
J.D. Candidate, 2014 - Washburn University School of Law
Writing Sample Compilation
1 An excerpt from a workers compensation issue:
Our client’s removal of personal belongings from her semi-truck to transfer them
to a newly assigned semi-truck likely qualifies as arising “out of” employment. K.S.A.
2012 Supp. 44-508(f)(2)(B)(i) states that there must be “a causal connection between the
conditions under which the work is required to be performed and the resulting accident.”
That is, “an injury arises 'out of' employment if it arises out of the nature, conditions,
obligations, and incidents of the employment.” Rinke v. Bank of Am., 282 Kan. 746, 752,
148 P.3d 553, 558 (2006). Accidents resulting from normal day-to-day activities, “with
no particular employment or personal character,” or that are “personal to the worker” do
not arise “out of” employment. K.S.A. 2012 Supp. 44-508(f)(3)(A)(i)-(iii).
In our client’s case, she was assigned a new truck, which required her to remove
her belongings from her current truck. The “work” of transferring trucks caused the
removal, and the removal would not have happened but for the work directive. See Id. at
§(f)(2)(B)(i). Such removal of items is not a day-to-day activity because most people do
not have occasion to remove items from a big rig. See Id. at §(f)(3)(A)(i). Our client’s
removal of items has an “employment character” because the items were removed at the
behest of the truck transfer order. See §(f)(3)(A)(ii). Moreover, it was not purely personal
because our client would not have removed her belongings apart from the truck transfer
order. See Id. at §(f)(3)(A)(iii). A truck driver who cleans out her big rig because her
supervisor has assigned her another truck is clearly doing something work-related,
something “incidental” to her work. See Rinke, 282 Kan. at 752.
Our client’s act of removing her personal belongings from her truck appears no
different than an employee removing her personal belongings from her house in
anticipation of a work-related move. In Stapleton v. State Hwy. Comm’n, 147 Kan. 419,
423, 76 P.2d 843, 845 (1938), a man was instructed to move for work at a new job site.
This would of course entail moving his personal belongings. Id. The court held that
“[m]oving his household goods was as essential in the performance of his duties as
moving his road machine. It was a necessary act to carry on the work entrusted to him.”
Id. Additionally, in Corbett v. Schwan’s Sales Enterprises, No. 216,787,
1998 WL 304287 *3 (Kan. WCAB May 26, 1998), the Board found that a truck driver’s
job “involved team driving which meant that he was to sleep while his co-driver operated
2 the truck. In this way, the act of removing his boots to sleep and putting his boots on to
drive were work-related activities.” Id.
In our case, removing personal items from a work vehicle would seem as natural
as removing them from one’s house. See also Leal v. City Wide Transportation, Inc., No.
1,029,415, 2007 WL 466015 *2-3 (Kan. WCAB Jan. 26, 2007) (indicating that a bus
driver’s “cleaning the bus and taking out his personal items” was a job-related task).
Further, we may also analogize to Corbett’s ruling, such that our client’s job as a truck
driver “involved [changing trucks,] which meant that she was to [pull personal effects out
of the old truck]. In this way, the act of removing [those effects from the old truck and
transferring them to the newly assigned truck] were work-related activities.” See 1998
WL 304287 at *3.
Concerning our client’s assertion that she was removing items from her semitruck “on her own time,” the real issue seems to be what a truck driver should consider to
be her “own time.” In other words, cleaning out one’s belongings from the old semitruck, driving the old semi-truck to drop it off, and picking up the new semi-truck, would
seem to be all part of one work-related trip, even if not accomplished all at one time.
Seen in this light, the Board in Roberts v. Royal Caribbean Cruises, No. 1,035,841, 2008
WL 5122315 *3 (Kan. WCAB Nov. 24, 2008), said that “when a business trip is an
integral part of the claimant’s employment the ‘entire undertaking is to be considered
from a unitary standpoint rather than divisible.’” (Claimant fell in the shower at her hotel
while on business trip). See also Blair v. Shaw, 171 Kan. 524, 529 233 P.2d 731, 734
(1951). Further, the Board held that “[a]s long as the trip or task is an integral or
necessary part of the employment an injury during any portion of the trip or task is
compensable.” See WL 5122315 at *3 (emphasis mine).
Additionally, removing items on one’s own time does not seem to be any
different, in substance, than an employee picking up her paycheck on her own time. In
Palmer v. Lindberg Heat Treating and Ins. Co., 31 Kan. App. 2d 1, 2, 59 P.3d 352, 354
(2002), a woman injured herself while picking up her paycheck on her own time and on
her employer’s premises. She was entitled to compensation because she was on her
employer’s premises. Id. The fact that the premises were “closed to the public” on that
day, and that her “last day of work for the . . . Christmas holiday” was the day before, did
3 not matter. Id. Similarly, our client, by virtue of being in her employer’s truck, was on
her employer’s premises. See Id. The removal of items was a necessary part of her job,
just as picking up a paycheck is a necessary part of someone’s job. See Id.
Moreover, our client’s removal of items would likely fall under the “work-related
errand” or “special purpose trip” exception to the “going and coming” rule, see K.S.A.
2012 Supp. 44-508(f)(3)(B), since it is a work-related errand to drop off one’s old semitruck and pick up a newly assigned one. In Halford v. Nowak Constr. Co., 39 Kan. App.
2d 935, 941, 186 P.3d 206, 211 (2008), the court stated that where “traveling is required
in order to complete some special work-related errand or special purpose trip in the scope
of employment,” the “going and coming” rule does not apply. Indeed, “this exception
extends to the normal risks involved in completing the task or travel, and the required
perspective is to view the task or trip as unitary or indivisible, meaning an injury during
any aspect thereof is compensable.” Id. at 941-42. Though our client did not complete her
“task or trip” of transferring items from one truck to another in one immediately
sequential activity, the entire endeavor was necessary. Therefore, a strong argument can
be made that her removal of items from the truck was part of the “unitary and indivisible
task” of changing trucks. See Id. Based on this overall analysis, I believe our client has a
compensable claim.
From an Advanced Oil & Gas Law Memo:
I. QUESTION: What determines ownership of oil and gas, and hence, the right
to develop oil and gas, beneath railroad property?
II. ANSWER: Whether a railroad or the adjoining landowner owns the oil and
gas underlying the railroad’s property turns on the purpose for which the railroad took its
property, as construed by the deed conveying the property to the railroad.
III. DISCUSSION: Where a railroad acquires land by a deed “which do[es] not
describe or refer to [the land’s] use or purpose or directly or indirectly limit the estate
conveyed,” the railroad generally takes a fee estate. Stone v. U.S.D. No. 222, 278 Kan.
166, 180, 91 P.3d 1194, 1203-04 (2004). Railroads take property in fee “where there is
nothing in the contract or conveyance indicating that they have been purchased for a right
of way.” Id. at 180. See also Abercrombie v. Simmons, 71 Kan. 538, 546, 81 P. 208, 211
4 (1905). In Stone, the fact that the land at issue was eventually used as a railroad right-ofway and was small in size did not render it an easement. 278 Kan. at 181. Because the
original deed unambiguously conveyed fee simple title in a tract larger than the right-ofway and because the deed “was void of any use restrictions,” the railroad retained a fee
simple interest in the land. Id. 180-81.
Conversely, according to Harvest Queen Mill & Elevator Co. v. Sanders, 189
Kan. 536, 541, 370 P.2d 419, 423 (1962), where the railroad takes land “for a right-ofway,” or where there is “language designating the land for use as a right-of-way or for
other railroad purposes,” Stone, 278 Kan. at 179, the railroad acquires an easement only,
not a fee title. Harvest Queen, 189 Kan. at 541-42. In such cases, the fee owner retains
title to and development rights for the minerals underlying the right-of-way, provided he
does nothing to threaten surface trackage. Id. at 542-43.Where railroads have been found
to take only easements, no dispositive language proves that fact, although in Harvest
Queen the land was an easement because it was conveyed “for the purpose of building”
and supporting a railway. Id. at 538.
Here, the fact that the 1885 deed reserves a narrow strip of land may not mean the
right-of-way is an easement. See Stone, 278 Kan. at 181. Further, the 1885 deed language
reserving “greater width” to the railroad “to secure and protect the main line of said
Railroad” does not explicitly mention “railroad purposes” or a “right-of-way.” However,
the above language in the 1885 deed and the additional language of “land . . . within lines
drawn parallel with, and fifty feet on each side distant from, the center line of its
Railroad,” indicates “the use to be made” of the land, namely, as a railroad right-of-way.
See Id. at 172. Moreover, the railroad company here excepted no larger portion of land
along with the right-of-way, as was conveyed by the original deed in Stone. See Id. at
181. The language of the deed in our case demonstrates that the land was excepted for a
right-of-way. See Abercrombie, 71 Kan. at 546. Hence, the railroad has only a surface
easement in the right-of-way and does not own the minerals beneath it, meaning that
Acme does not need a lease from the railroad before Acme drills.
5 An excerpt from a Constitutional History paper, Spring 2013, on “The Original
Meaning of the Establishment Clause.”
Justice Clarence Thomas has remarked that our “Establishment Clause
jurisprudence [is] in shambles.”1 The Supreme Court seems to lack a consistent standard
by which to determine violations of the Establishment Clause,2 and further, the Court’s
“jurisprudence provides no principled basis by which a lower court could discern whether
Lemon/ endorsement, or some other test, should apply in Establishment Clause cases.”3
The modern confusion can been seen by the fact that “a crèche displayed on
government property violates the Establishment Clause, except when it doesn’t,”4 and
menorahs, Ten Commandments displays and crosses on government property also run
afoul of the Establishment Clause, “except when they [don’t].”5 Thus, according to
Justice Thomas, the “Court’s repeated failure to apply the correct standard – or at least a
clear, workable standard” in Establishment Clause cases, has led to a chilling effect on
religious expression.6 When it comes to religious displays, government actors will often
scrub the public square clean rather than risk a lawsuit.7
Yet the confusion is not limited merely to religious public displays. Other uses of
government tax dollars still raise questions about the Establishment Clause. For example,
did President George W. Bush’s “faith-based initiatives” – continued by President Obama
– amount to an unconstitutional establishment of religion?8 Would allowing Muslim
students to have prayer rooms and/ or footbaths on a public school campus constitute a
governmental establishment of religion?9 Do FEMA funds directed to help rebuild
1
Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12, 13 (2011) (Thomas, J., dissenting from denial
of cert.).
2
id. at 14
3
4
5
6
7
8
Id.
id. at 17
Id. at 18-19.
Id. at 22-23.
Id. at 23. See Laurie Goodstein, White House Director of Faith-Based Office Is Leaving His Post, N.Y. Times, Feb. 7, 2013,
http://www.nytimes.com/ 2013/02/08/us/politics/white-house-director-of-faith-based-initiatives-will-stepdown.html?_r=0 (noting that “[s]ome of the most prickly First Amendment issues facing the faith-based office were
never resolved under [the director’s] tenure, most notably the question of whether religious organizations can receive
government funding and still discriminate in hiring”).
9
See Tamar Lewin, Universities Install Footbaths to Benefit Muslims, and Not Everyone Is Pleased, N.Y. Times, Aug.
7, 2007, http://www.nytimes.com/2007/08/07/education/07muslim.html?pagewanted=all&_r=0.
6 “churches, mosques, synagogues and other houses of worship” destroyed by Hurricane
Sandy represent a rejection of “decades of Supreme Court precedent and longstanding
administrative rules barring direct taxpayer financing of religious activities?”10
These questions and more may be variously answered, depending on which
approach a court takes to Establishment Clause jurisprudence. At points the U.S.
Supreme Court has seemingly sought to discern the “original,” historical meaning of the
Establishment Clause in order to apply that meaning to contemporary issues.11 In other
cases, the Court has virtually ignored any historical understanding,12 perhaps agreeing
with the notion that “an accurate account of the intellectual origins of the Establishment
Clause does not, and cannot, provide a definitive answer to the question of what exactly
the Establishment Clause prohibited then or prohibits now.”13 In either case, “[t]he
relationship between church and state has been one of the crucial questions in Western
constitutional thinking since the Middle Ages.”14
Therefore, it is no fool’s errand to inquire into the nature of the modern Court’s
interaction with the history surrounding the formation of the Establishment Clause, and
then to look into that history for oneself. If our current understanding of the
Establishment Clause has truly resulted in a quandary, then a return to the enactment
context may be the most profitable course. Thus, this paper seeks to describe from the
case law three distinct views of the Establishment Clause’s original meaning: strict
separationism, nonpreferential aid, and federalism,15 and then provide some
commendation and critique of these views from a historical perspective, along with some
practical considerations.
10
Editorial, A First Amendment Storm, N.Y. Times, Mar. 4, 2013, http://www.nytimes.
com/2013/03/05/opinion/separation-between-church-and-state.html.
11
See e.g. Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1 (1947).
12
13
14
15
see e.g. County of Allegheny v. A.C.L.U. Greater Pittsburgh Chapter, 492 U.S. 573 (1989)
Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346, 417 (2002). Id. at 428.
see Vincent Phillip Munoz, The Original Meaning of the Establishment Clause and the Impossibility of It’s
Incorporation, 8 U. Pa. J. Const. L. 585, 586-87 (2006) (proposing these three views)
7 A brief excerpt on statutory construction:
The first iteration of K.S.A. 17-7622, comes from L. 1990, ch. 80, § 22, which
states in § 22(a)(3) that an LLC will be dissolved “upon the death . . . of a member . . .
unless the business of the limited liability company is continued by the consent of all the
remaining members or under a right to continue stated in the articles of organization of
the limited liability company.” Subsequently, in L. 1995, ch. 245, § 16, subsection (a)(3)
reads the same as above, except that the business of the LLC may be continued “by the
consent of a majority in interest of the remaining members or under a right to continue
stated in the articles of organization or operating agreement” of the LLC.
However, in L. 1998, ch. 36, § 3, subsection (a)(3) above is stricken in its entirety.
Thus, the legislature obviously did not like the consent provision. Therefore, even before
K.S.A. 17-7622 was repealed as a whole in L. 1999, ch. 119, § 87, the ‘consent to
continue’ provision was gone. The current statute, K.S.A. 17-76, 116(b) provides that a
member’s death will not dissolve the LLC and the LLC will continue in existence, unless
within 90 days of the death, the remaining members agree in writing to dissolve the LLC.
However, this is only true “unless otherwise provided in an operating agreement.” Hence,
if an operating agreement states that the death of a member dissolves the LLC, then that
will control over subsection (b) above. Nothing else in the current Kansas Revised
Limited Liability Company Act allows LLC members to waive the dissolution provisions
of the LLC’s operating agreement.
8 9