What is a Common Law State?
The term common law describes a system of law in which judicial decisions determine the interpretation of legislation and precedent (the common law) is considered high authority. In England, common law was developed by judges who would decide on a case and set a precedent. As courts began to gain the authority to review legislative actions, judicial decisions became law. This culminated in the principle of stare decisis, meaning that the legal decisions made by one judge can set precedent for future cases. Common law states are those that have inherited the common law tradition of English law. The majority of American states, including Kansas, operate under the common law system.
Civil law, in contrast, describes a legal system that relies on written codes. Countries that have civil law systems are often governed by a body of laws codified in one document. Under a civil law system, judicial decisions hold significantly less precedence and do not create binding rules of law. Instead of having a precedent setting value, judicial opinions are used primarily as persuasive authorities.
Common law states like Kansas often codify some portion of the common law but there is no unifying document. Kansas state statutes include evidence rules, contract law, tort law, domestic relations, and criminal code amongst others. However, the Kansas Supreme Court often looks beyond its own statutory scheme to other states’ laws for guidance in interpreting the law. For example, the Court may refer to the Restatement of Torts or Restatement of Contracts for interpretation of Kansas tort law and contract law, respectively . While the court will not adopt another state’s statutes or the Restatement outright, the court will refer to relevant language in these documents to determine the intent of the legislature in molding established common law principles to modern societal issues. Kansas also provides soft-guidance into judicial decisions through the Kansas Judicial Council, an arm of the judicial branch that creates and proposes changes to the law. The Council drafts bills and studies the operation of the judicial system, reviewing proposed changes to enhance the court’s ability to address its responsibilities. Kansas state statutes cite to the Judicial Council recommendations, stating, "The judicial council may make such recommendations to the supreme court as the council determines are appropriate concerning the drafting, enactment and implementation of legislation controlling the procedures of any court," hereby making the Judicial Council’s recommendations informal authority for the Kansas Supreme Court. Legal research in Kansas remains the same, unlike state statutes, regardless of whether the state is common law. One cannot simply use federal or state statutes to understand how a court will interpret a specific set of facts. Regardless of the legal code established by the legislature, the Kansas Supreme Court’s decision may be vastly different. Because the Kansas Supreme Court can interpret law and examine wholly new issues, one must stay abreast of recent judicial decisions to understand how Kansas courts are likely to interpret statutes.
The Legal System in Kansas
While a few states have gone in the other direction (i.e., codifying common law), Kansas is a common law state, though the term "common law" means many different things. In the general sense as used here, the term "common law" indicates the absence of a comprehensive compilation of statutes or codes theoretically governing all aspects of life and relationships in the state.
The present legal framework in Kansas includes many codes or compilations of statutes that address many, but not all areas of the law. The Kansas Constitution of 1859 was highly influenced by the widely adopted Ohio Constitution of 1851. The Kansas Bill of Rights from 1859 is almost identical to the Bill of Rights in the Ohio Constitution. The territorial legislature made laws applicable to Kansas as of May 30, 1854, the date the Kansas-Nebraska Act was enacted. The territorial laws came from several sources, including the 1846-1847 Code of Iowa and an early adaptation of the state constitution and laws of Iowa. The territorial laws were adopted for sole governance of the territory until the first Kansas Statutes became effective July 1, 1862. In 1868, Kansas adopted its first permanent Chapter One, the Criminal Code, modeled on a compilation of New York statutes adopted by Illinois, Iowa, and Michigan. Thereafter, a number of changes occurred, including the adoption of the Field Code (1879) for civil procedure in several states. For Kansas, that was first adopted in 1879, and a new one was enacted in 1909. Kansas now uses the Kansas Rules of Civil Procedure and the Kansas Code of Civil Procedure. The model for those procedures was the Uniform Federal Rules of Civil Procedure.
Starting in 1862, the legislature enacted several codes that now cover specific areas of law, eventually including the Criminal Code (1909), Rules of Civil Procedure (1909), Code of Civil Procedure (2010), Code of Criminal Procedure (2010), Uniform Commercial Code (1965), Code of Civil Procedure for Limited Actions (2010), and Kansas Criminal Justice Information System Act (2015). The Common Law Pleading and Practice Act in 1868 codified some common law rules of practice and procedure.
The Kansas Constitution adopted in 1859 provided for the establishment of a Supreme Court and District Courts. In addition, the Kansas Legislature established Municipal Courts, district magistrate courts (precursors of many district courts), probate courts, justices of the peace, and county and municipal judges. These judicial offices have been replaced by other offices. Until quite recently, there were still magistrate courts and judges in Kansas. Those magistrates were replaced in 2011 with county court judges. That may be the evolving status of the Kansas court system. The Kansas Court of Appeals was established in 1903 and became an intermediate appellate court in 1977. Kansas also has Workers’ Compensation Boards, which are administrative bodies responsible for adjudicating claims relating to work-related injuries. There appears to be no substantive difference among the various boards.
Kansas also has a large number of administrative agencies such as Insurance Commission, Kansas Department of Health and Environment, Banking Commission, Kansas Department of Revenue, Public Service Commission, and Securities Commissioner.
How Common Law Affects Kansans
Common law principles profoundly affect the daily lives of residents of Kansas, impacting everything from marriage to property rights to torts. In matters such as personal injury, sexual harassment, and defamation, common law principles set forth the substantive law residents can expect to confront in a court of law. Even issues pertaining to child custody and child support are limited by what a court determines are appropriate under previous decisions.
Most commonly, Kansas residents engage with common law principles when they were married before July 1, 1907, or the parties are seeking to void a contract based upon fraud. Because Kansas has long been recognized as a common law state, plaintiffs bringing claims that attempt to circumvent binding precedent may face an uphill battle.
When considering whether the Kansas courts will overturn binding precedent to bring a fresh perspective, Kansas courts will consider factors including (a) whether a new rule will promote or inhibit the development of the common law; (b) whether the rule will frustrate parties’ legitimate expectations; (c) whether the rule is workable under judicial implementation; (d) whether the rule will create a significant degree of certainty in areas of the law; (e) whether the new rule can be more easily replaced through legislation than judicial overruling; and (f) whether other jurisdictions have made decisions in conflict with the proposed rule.
Kansas courts are particularly reluctant to decline to follow a decision of the Kansas Supreme Court. Overruling a Kansas Supreme Court precedent is seen as inherently offensive to the doctrine of separation of powers, relegating the Judiciary to a secondary role and disrupting the stability that the precedential rule provided. Even so, when the law has undergone a fundamental change, there is time for the Courts to catch up. These considerations, while specific to the Kansas Courts, show that decisions over Kansas jurisprudence may be more complex than those over many other states.
It is critical for plaintiffs facing issues of binding precedent to evaluate their particular case with their attorney. While many matters are straightforward, issues such as fraud may be determined by the plaintiff’s approach. Even marital issues could be impacted by little-known laws and rules. Residents of Kansas who believe they have been wronged should look into the protections they may have available to them, even if the answer may seem obvious.
The Importance of Precedent in Kansas Law
In a common law system such as Kansas (which has been called a "code common law" state), the effect of judicial precedent is substantial. For any given issue of law, the decisions of a state supreme court are conclusive, and lower state courts have an obligation to follow them. The only exception to this is when the supreme court reverses or modifies a prior decision, which then becomes binding until it is overturned. Trial courts are also bound by intermediate appellate decisions; however, the supreme court is not bound by its own prior rulings. This is somewhat analogous to the federal system, where all state courts are required to follow the decisions of the U.S. Supreme Court, but the U.S. Supreme Court is free to overturn any of its prior decisions . In this respect, Kansas approaches a pure code system, albeit not quite as strictly as the U.S. Supreme Court with respect to federal law. Even though Kansas is a common law state, its supreme court rules are influenced by statutes, and even common law contract issues can be governed by statutes, like the rules of the Uniform Commercial Code. It is rare for a court to overturn a prior decision. In the last fifty-six years, according to a Kansas Judicial Council report entitled Kansas Civil Legal Procedures, only twenty one opinions were published by the Supreme Court that overruled a previous decision. The majority of opinions published remain on the books indefinitely and become binding precedent to lower courts.
Kansas and Common Law Marriage
Common law marriage in Kansas follows an unwritten ancestry by the common law. Common Law marriage exists in several states in the United States, allowing partners to be legally considered married without a marriage license or solemnization ceremony. In Kansas, common law marriage is legally recognized, although the presumptions and requirements are different from other states.
Kansas common law marriage was first recognized by the State Supreme Court in 1870 where the court sustained a verdict in favor of plaintiffs for a common law marriage. However, Kansas common law marriage began to decline in the beginning of 1900s as the state legislature passed statutes regulating marriages.
Although same-sex marriage is not legally recognized in Kansas at this time, same-sex partnerships may opt to marry in another state and return to Kansas under those circumstances. All foreign marriages are valid in Kansas except those against the rules of nature (such as bigamy or incest).
In 1976 Kansas passed a statute enumerating the requirements for couples wishing to prove a common law marriage. The most well-known requirement was that the couple needed to hold themselves out to be a married couple and should be evaluated under the circumstances to determine if they met that requirement. The following actions were seen as sufficient proof of a common law marriage:
The goal of permitting those elements was not to make it easy for couples to come into existence, but to deter opportunism. Essentially the court was concerned about people making statements on the witness stand later than the fact and requiring them to show those acts happened and that they were done before they separated. However, the court provided no guidance on how much time needs to pass but did note that several years was too short when the testimony was compelled by recent trouble in the marriage.
In 1980, the Kansas Supreme Court was well aware that a husband had spent many years in jail and that his conviction had been vacated. His wife was never told and by the time he was released had died. He sued the state for compensation for his wrongful conviction and was dismissed. However, the decision was reversed on appeal and the Supreme Court noted in 1985 that the couple was married by common law.
It is important to note that the requirements for a common law marriage in Kansas were recently overturned in 2013 by the court. This means that there is no longer a minimum length of time for a co-habitational relationship. The current law merely requires a valid common law marriage before the action.
How Does Kansas Compare to Other Common Law States
All common law states apply the principles of English common law in some form. They however, interpret it differently with respect to its application and evolution. As previously discussed, common law principles have been integrated into statutes and rules, which are regularly revised and amended. This leaves little room for the practical application of common law in many practice areas when compared to the more statutory approach gained through legislative action. Even with such an approach by state legislatures, the common law does still influence interpretation of statutes. The application of common law in Kansas with its heavy reliance on statutes, regulations, and rules, is similar to its application in other states such as Colorado, Nebraska, Utah, and Florida. Common law in these states has been largely supplanted by statutes, rules, and regulations. Nevertheless, even if commonly applied principles from English common law are virtually non-existent or limited in a particular state, that does not necessarily detract from the strength or importance of the common law . This can be exemplified by the application of common law in Kentucky. Despite Kentucky’s codification of its legal system as a statutory and regulatory system, the state has adopted the common law in its entirety. If provisions of the common law conflict with Kentucky Revised Statutes, the statutes control. If they are not in conflict, then the common law applies. Id. Thus, Kansas’ common law principles may not be as explicitly defined, but nonetheless are as impactful as those in other common law states. Those unique attributes include: the abolishment of the common law writs and the existence of the Kansas code of procedure, which was created to "abolish feudalistic notions of rights, remedies, and procedure." In Illinois, it has been noted that in cases of weight and scope and as a result of a different state of society, [the Code of Civil Procedure] is sweeping and bold in its destruction of laws and usurpation of functions . . . ." In that same case, the Illinois Supreme Court recognized that because of the Kansas Code of Civil Procedure, Kansas does not "even approximate" the common law codification seen in Illinois.