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Citation Practices of the Kansas Supreme Court and Kansas Court of Appeals

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Citation Practices of the Kansas Supreme Court and Kansas Court of Appeals Case Western Reserve University School of Law Scholarly Commons Faculty Publications 1998 Citation Practices of the Kansas Supreme Court and Kansas Court of Appeals Joseph A. Custer Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Law Commons Repository Citation Custer, Joseph A., "Citation Practices of the Kansas Supreme Court and Kansas Court of Appeals" (1998). Faculty Publications. 2105. https://scholarlycommons.law.case.edu/faculty_publications/2105 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Citation Practices of the Kansas Supreme Court and Kansas Court of Appeals Joseph A. Custer 1. Introduction more than once in a case but different issues of This article examines the citation practices the cited opinion were discussed the cites were of the Kansas Supreme Court and the Kansas treated as distinct. Any citation to a code or Court of Appeals. The Kansas Court of regulation was counted separately as long as Appeals has only been in its present form since there was a distinct subdivision indicating dif- 1977. This study therefore is based heavily on ferent code or regulation sections. All parts of a fifteen year period from 1982 through 1996: the opinion were studied and analyzed, includ- fifteen years in which both the Kansas ing dissenting opinions. The 200 cases from Supreme Court and Kansas Court of Appeals 1995 along with the 100 cases from both 1935 have been in operation. In addition, this study and 1965 were checked manually. Additional examines how the Kansas court citation prac- work, especially on secondary sources, was tices have changed over the years, beginning done through computer-assisted legal research. with Kansas Supreme Court citation practices in 1935. Kansas practitioners may want to note II. Judicial Opinion Citations what the courts in Kansas have cited to over the A. Kansas judicial opinion citations. years and what they are currently citing to. The judicial opinion was by far the source This article concludes with a discussion most cited by the Kansas Courts. Throughout addressing the issue of policy making and the years studied, judicial opinions were heav- whether policy goals of Kansas judges can be ily cited by the Kansas Supreme Court: 63.8% discerned from examining the citation prac- of all cites in 1935; 68.1% in 1965; and 69.1% tices of the courts. in 1995. The Kansas Court of Appeals cited to Other writers have analyzed citation prac- judicial opinions 68.5% in 1995. The Kansas tices in various parts of the country. I The writ- Supreme Court is the most frequently cited ers have looked at opinion citation practices source among these judicial opinions. The over the years sometimes picking three or more Kansas Supreme Court in 1995 cited to itself sample years to analyze. This current study (Kansas Supreme Court) 59.4% of the time. sampled the years 1935. 1965 and 1995. In See Table 4. The rate of citation to the Kansas 1935 and 1965, 100 cases in each year from the Supreme Court was 56.2% by the Kansas Kansas Supreme Court were analyzed. In Court of Appeals in 1995. The rate of citation 1995, 200 cases were analyzed, 100 from both by the Kansas Supreme Court to itself was the Kansas Supreme Court and the Kansas even higher in 1965 and 1935, over 70% each Court of Appeals. Citation to Primary and year. These findings are very much in tune Secondary sources of law was the focus in this with other articles that have analyzed citation study. All cites were recorded as long as the cites were distinct. If an opinion was cited Joe Custer is a reference librarian at the University of Kansas School of Law in Lawrence, Kansas. Citation Practices practices showing a definite citation preference 1935, 5.8% in 1965 and 13.9% in 1995. for the state high court. 2 As far as citing to the Therefore, while citation to other state courts Kansas Court of Appeals is concerned, the has fluctuated and slightly dropped, there still Kansas Supreme Court cited to the Kansas appears to be a reliance on other state opinions Court of Appeals 5.4% in 1995. The Kansas despite the fact that the pool of Kansas case Court of Appeals cited to itself 16.0% in 1995. law and in-state precedent has grown signifi- 16% is significant considering the fact that cantly over the years. only a fraction of the total Kansas Court of What factors influence the Kansas courts Appeals cases are published each year.' See in relying on other state precedent? One factor Table 3. that can be dispelled in this study is the West Regional Reporter factor. One could hypothe- B. Federal judicial opinion citations. size that the courts would cite more often to Citation to federal judicial opinions has other states in its Pacific West Reporter region, increased in the Kansas Supreme Court from particularly before the advent of computer- 6.5% in 1935 to 20% in 1965 and 19% in 1995. assisted legal research. The idea being that the The reason for this increase from 1935 is prob- regional reporter, before the advent of comput- ably the greater number of Civil cases with er-assisted legal research, would be the most constitutional or regulatory questions Iwhichl prevalent source for other state judicial opin- may include numerous citations to federal ions in Kansas law libraries and therefore the opinions. The use of federal opinions is tied cases within its covers the most cited to. also to the increase in the number of opinions However, if one looks at the numbers, this involving criminal issues.g@4 56% of the hypothesis does not hold true. The Kansas Kansas Supreme Court cites to federal judicial Supreme Court cited to other state courts opinions were to the United State, Supreme reported in the Pacific West Regional Reporter Court. 32% were to federal appellate courts. only 21 times in 1965 but cited to other state 12% were to the federal district courts. opinions a whopping 79 times in 1995 (after Citation to federal case authority by the the advent of computer-assisted legal Kansas Court of Appeals was comparatively research). less but still significant at 13.1%. 48% of the Therefore, what does account for Kansas Kansas Court of Appeals cites to federal judi- citing to other state courts? Maybe this ques- cial opinions were to the United States tion can be answered by tabulating what states Supreme Court. 38% were to the federal Kansas does cite to and how often? appellate courts. 14% were to the federal dis- Differences in citation rate among the several trict courts. states has been ascribed variously to such fac- tors as relative geographic proximity, popula- C Citedjudicial opinions from other tion size, nigration patterns, level of urbaniza- states. tion, and industrialization, amount of accumu- Of all case cites, the Kansas Supreme lated precedent and prestige.(@)5 Many of these Court cited to other state opinions 14.4% in factors explain why the Kansas Courts cite Custer California and New York the most often (66 for recent case authority in Kansas, only 10.7% times each over the three sample years total). of the cases decided before 1970 were cited to See Table 5. The above-mentioned factors of by the 1995 Kansas Supreme Court and only size, urbanization and industrialization also 10.4% of the cases decided before 1970 were explain why Florida, Illinois, Massachusetts, cited to by the Kansas Court of Appeals. See New Jersey, Ohio, Texas and Waslhington were Table 7A-7B. cited more frequently than most other states. What accounts for this inclination toward Another factor quoted above, geographic prox- citing more recently decided decisions? This imity, comes to the forefront because proclivity is not peculiar to Kansas. Other cita- Colorado, Iowa, Minnesota, Missouri, tion studies have shown the same partiality for Oklahoma and Wisconsin were frequently recently-decided opinions. It can best be cited states. explained as follows: Another factor appearing to contribute to .... later decisions seem to the justices to the Kansas Courts citing to other state prece- be both more in point and more dent is the String citation.(@l In 1935, the persuasive. The older the case, the more remote the social context in Kansas Supreme Court had 21 string cites which it arose and the less likely that (comprised of at least 4 cites per string.) The its relevant facts will be, or seem, 31 and 32 string Kansas Supreme Court had comparable to those in the case before cites respectfully in 1965 and 1995. The the court. An older decision is also Kansas Court of Appeals had 18 string cites in more likely to have been overruled by = 1995. >Why so many string cites? The legislation, by the court itself, or by Kansas courts many times use string citations changes in federal constitutional law. in order to show state jurisdiction tracking. Finally, the legal culture may have See Table 6. While tiis practice of using a changed; the climate of legal opinion string citation for jurisdiction tracking may not about the question may have shifted, so always be merited, it is a comparatively better that reasoning that seemed powerful at method than using a string citation for aesthet- the time is no longer legally not consider ic counting. (The idea that if enough cases are compelling.
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