This Learned and Versatile Court
| Publication year | 2002 |
| Pages | 22-28 |
| Citation | Vol. 71 No. 1 Pg. 22-28 |
71 J. Kan. Bar Assn. 1, 22-28 (2002). This Learned and Versatile Court
71 J. Kan. Bar Ass'n, Jan. 2002, 22-28 (2002)
Butterfingers Johnson was an unlikely bridge to span a broad gap in Kansas jurisprudence.[2] On December 3, 1968, after he and one Helen Jean Slate had "appeared to be loving and kissing" in her Junction City front yard, she killed him by stabbing his heart with a four-inch-bladed knife.[3] Sadly, the evidence at trial revealed that Butterfingers had ignored his mother's warnings about his relationship with Ms. Slate. The evidence did not reveal, however, whether his mother had also warned him about his relationship with John Barleycorn; his blood alcohol content at death was .169.[4]
Butterfingers helped to span a 76-year-old gap, because his case was the first to be heard by the newly constituted Kansas Court of Appeals after its 1901 termination.[5] This month the court celebrates the silver anniversary of its reconstitution on January 10, 1977. Accordingly, this article will address the work of this court and its history.
I. History of the Creation
The 1977 reconstitution was the sixth time the appellate court system in Kansas had been enlarged. Initially the Supreme Court of Kansas consisted of three justices.[6] Because of an increased caseload, the court was supplemented in the late 1880s by the addition of three commissioners. These citizens were required to be "of high character for legal learning and personal worth" whose principal function appears to have been writing opinions for the Supreme Court.[7] In 1893 the commissioners' terms were allowed to expire, and two years later the legislature readdressed the increasing caseload problem when it established two additional courts of record, known collectively as the Kansas Court of Appeals.
Two judicial departments, a northern and a southern department, were created and staffed with three judges each.[8] The northern department contained three divisions: the eastern division met at Topeka, the central met at Concordia and the western at Colby. The southern department contained similar divisions: the eastern met at Fort Scott, the central at Wichita and the western at Garden City. By law, each court was required to hold three terms in each division annually, thus somewhat foreshadowing the present court's statutory discretion to provide appellate review near the site of the trial.[9]
Like the earlier commissioner system, the courts of appeal were apparently regarded as emergency agencies, since the legislation creating them provided that the courts should expire in January 1901. They were allowed to expire after the Supreme Court was enlarged from three to seven justices pursuant to a 1900 constitutional amendment.[10] During the six years of the courts' existence, they decided more than 2,000 cases.[11]
By 1963, because the volume of cases in the seven-person Supreme Court had substantially increased, the legislature resurrected its nineteenth century solution and authorized the appointment of a commissioner to aid in the disposition of appeals and in writing opinions. In 1965, a second commissioner position was created to help with the caseload.[12] In the early 1970s, the Supreme Court further addressed its growing caseload problems by establishing a summary calendar procedure and assigning retired district court judges and Supreme Court justices to perform judicial duties on a voluntary basis pursuant to recent legislation.[13] By 1973, however, the average time lapse in Kansas' only appellate court, from notice of appeal to termination by formal opinion, was 20.8 months for civil cases and 17.6 months for criminal cases.[14]
According to University of Kansas law professor Paul E. Wilson, by the early 1970s, "[I]t had become apparent that further reforms were required if Kansas were to continue to provide its citizens with an accessible, economical, and prompt process for appellate review."[15] A new judiciary article for the Kansas Constitution, Article 3, had been adopted in 1972. As a prelude to its legislative implementation, the 1973 legislature authorized the chief justice to appoint a judicial study advisory committee to help examine the Kansas court system and to make recommendations to the judiciary and the legislature.[16]
The committee's 1974 report - Report of the Kansas Judicial Study Advisory Committee, Recommendations for Improving the Kansas Judicial System - acknowledged a number of fundamental truths. Among others, these included, "There is a deeply rooted tradition in Kansas, as in most American jurisdictions, that each litigant is entitled to at least one appeal as a matter of right."[17] Second, "The objective of judicial reform ought to be to make appellate courts more, not less, accessible to the people."[18] Although not precisely qualifying as a third fundamental truth, an inescapable fact was that the appellate caseload in Kansas had not only increased in diversity and complexity, but also that its volume and complexity would continue to increase.[19]
The Judicial Study Advisory Committee ("JSAC") looked at various solutions, but ultimately recommended that the legislature create an intermediate appellate court. It gave five main reasons:[20]
1. Use of an intermediate appellate court permits the separation of the "review for correction of error" function,[21] which would be handled by the intermediate court, from the "development and interpretation of law" function, which would remain in the Supreme Court;
2. The removal of routine appeals from the Supreme Court docket allows the Supreme Court time for more deliberate and mature consideration of cases having significant precedential value;
3. An intermediate court of appeals can function through three judge panels, which are sufficiently large for a simple review of trial records, and decisions can be made by a majority of the judges sitting. Kansas constitutional limitations preclude such flexibility at the Supreme Court level;
4. An intermediate court of appeals can employ simplified procedures for review designed to minimize delay, cost, and effort. Such streamlining may not be appropriate at the Supreme Court level; and
5. Panels of an intermediate court of appeals may conduct hearings at locations other than the state capitol thus making the review process more accessible to litigants. Such mobility cannot be expected from the Supreme Court.[22]
In large part due to JSAC's recommendations, the court of appeals was created by the legislation that implemented Kansas' new judiciary article.[23] The legislation was to be effective January 10, 1977.[24] Professor Wilson, who served as a consultant to JSAC, crisply summarized the court's purpose: "The only reason for the court's existence is to provide a resource for more accessible, speedier and less costly appellate review for Kansas litigants."[25]
Professor Wilson had noted in 1976 that creating courts of appeal results in more cases being appealed because the appellate tribunal is made more accessible to litigants.[26] He therefore conjectured, "It seems a reasonable inference at the outset the Kansas Court of Appeals may have a caseload of around 400 cases per year."[27] The professor opined, however, that, "It seems likely . . . that within a few years more judges will be needed"[28] besides the seven.
Professor Wilson proved prophetic as the caseload increased, albeit much greater than he had foretold. By late 1980, less than four years after the court's creation, its backlog was almost 1,000 cases. Chief Judge J. Richard Foth agreed the backlog was caused, in part, by litigants who had been heartened by the creation of the more accessible...
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