SELIG 4/19/2010 10:43:04 AM

INCORPORATING THE ANALYSES OF

THE KANSAS SUPREME COURT
UNDER IN RE L.M. TO CREATE A
MORE BROADLY APPLICABLE
JUVENILE JUSTICE HOLDING

Caroline Selig
Abstract: Imagine that you are on trial, charged with a violent crime. One
possible sentence, should you be convicted, is that you will be required for a
period of time, or even the rest of your life, to register as an offender. Now
imagine that you invoke your right to a jury trial only to be told that, because
you are a sixteen-year-old juvenile instead of an eighteen-year-old adult, you
have no such right to invoke. L.M., a sixteen-year-old Kansas citizen, was
recently in this very situation. Facing a charge of aggravated sexual battery
that could result in mandatory offender registration, his motion for a jury
trial was denied, and that denial was subsequently affirmed by the Kansas
Court of Appeals, relying on precedential case law that held that the
constitutional right to a jury trial was not afforded to juveniles. In a
groundbreaking opinion, the Kansas Supreme Court held that, under
Kansass current juvenile justice scheme, juveniles are guaranteed a
constitutional right to a jury trial by the Sixth and Fourteenth Amendments to
the United States Constitution and the Kansas Constitution Bill of Rights,
section 10.

This Comment examines the decision of the Kansas Supreme Court that
found a juveniles right to a jury trial in both the federal and the Kansas
constitutions. This Comment argues that the majority was correct in

Candidate for Juris Doctor, New England School of Law (2010). B.G.S., Fort Hays State
University (2006). A.A., Paralegal Studies, Johnson County Community College (2005). I
would like to thank my dad, Alan Selig, for all his patience and support throughout law
school and especially with this article. I would also like to thank Matt Hranitz, Marie
Lyddon, and Jen Peterson for always listening, being willing to help, and above all for
having such amazing senses of humor.

469
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470 NEW ENGLAND LAW REVIEW [Vol. 44:469

recognizing that differences between the Kansas juvenile justice system and
the adult criminal justice system have eroded to the point where it is
necessary to give juveniles the right to a jury trial that is given to adults in a
criminal context. This Comment also argues, however, that the majority
opinion failed to take into account points made by the dissenting and
concurring opinions which would have strengthened the majority opinion
and made it more applicable in other jurisdictions.

Part I of this Comment examines the background of the juvenile justice

system, both nationally and specifically in Kansas. Part II provides a detailed
examination of the majority, concurring, and dissenting opinions of the
Kansas Supreme Court in In re L.M. In Part III, a new analysis of the
question is proposed: by combining the historical analysis utilized in the
concurrence with the statutory character- and comparison-driven analysis in
the majority opinion (tempered by the dissents caution against elevating
form over substance), the resulting test used may be broadly applicable in
other jurisdictions struggling with similar issues in juvenile justice.

INTRODUCTION
Imagine that you are on trial, charged with a violent crime. One
possible sentencing consequence, should you be convicted, is that you will
be required for a period of months, years, or even the rest of your life, to
register as an offender. Perhaps the crime of which you are accused is not
one of a sexual nature but rather a crime thought serious enough by the
state legislature to be included in the crimes for which convicted people are
required to register as an offender, such as involuntary manslaughter.1 This
is a crime that is considered a serious enough offense to society to justify
imposing strict registration requirements.2 These requirements might
include notifying local law enforcement within ten days of any change of
address, change in employment, attendance at an institution of higher
education, and reporting in person to the local sheriffs office not less than
four times per year.3 Failure to comply with these requirements can lead to
an additional felony conviction.4
Now imagine that, considering the gravity of this possible sentence in
addition to any possible incarceration or commitment, you invoke your
right to a jury trial only to be told that, because you are a sixteen-year-old

1. See KAN. STAT. ANN. 22-4902(d), -4906 (2007).

2. See id.
3. See 22-4904.
4. See 22-4903.
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 471

juvenile instead of an eighteen-year-old adult in the eyes of the law, you

have no such right to invoke.5 L.M., a sixteen-year-old Kansas citizen, was
recently in this very situation.6 Facing a charge of aggravated sexual battery
that could result in mandatory offender registration, his motion for a jury
trial was denied and that denial was subsequently affirmed by the Kansas
Court of Appeals, relying on precedential case law that held that the
constitutional right to a jury trial was not afforded to juveniles.7 In a
groundbreaking opinion, the Kansas Supreme Court, on L.M.s appeal,
held that under the current juvenile justice scheme in Kansas, juveniles are
guaranteed a constitutional right to a jury trial by the Sixth and Fourteenth
Amendments to the United States Constitution and the Kansas Constitution
Bill of Rights, section 10.8
The Sixth Amendment guarantees the right to trial by an impartial
jury in all criminal prosecutions.9 That right was incorporated to the states
through the Fourteenth Amendment.10 In juvenile adjudications, however,
the United States Supreme Court has held that there is no such
constitutional guarantee.11 While the Supreme Court was divided over the
reasoning behind holding that states are not required to provide jury trials
for juvenile adjudications, four of the Justices focused on preserving the
unique nature of the juvenile system as compared to the adult criminal
justice system.12 In McKeiver v. Pennsylvania, Justice Blackmun pointed to
the intimate and informal nature of juvenile proceedings as a justification.13
Wishing to preserve the fairness, concern, sympathy, and paternal attention

5. See In re L.M., No. 96,197, 2006 WL 3775275, at *1 (Kan. Ct. App. Dec. 22, 2006)
(unpublished table decision), revd, 186 P.3d 164, 165 (Kan. 2008).
6. See In re L.M., 186 P.3d at 165.
7. Id.
8. Id. at 172.
9. U.S. CONST. amend. VI.
10. U.S. CONST. amend. XIV.
11. McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971). A majority of the Court
agreed that juveniles are not afforded a constitutional right to a jury trial, although the
Justices could not agree on the rationale behind the holding. See id. at 547 (Blackmun, J.)
(plurality opinion) (discussing that although a state may provide jury trials for juveniles, it is
a privilege, not an obligation); id. at 551 (White, J., concurring) (States are not required . . .
to afford jury trials in juvenile courts . . . .); id. at 557 (Harlan, J., concurring) ([C]riminal
jury trials are not constitutionally required of the States, either as a matter of Sixth
Amendment law or due process.).
12. Id. at 545-51 (Blackmun, J.) (plurality opinion).
13. See id. at 550.
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472 NEW ENGLAND LAW REVIEW [Vol. 44:469

contemplated by the juvenile system,14 Justice Blackmun reasoned that [i]f

the formalities of the criminal adjudicative process are to be superimposed
upon the juvenile court system, there is little need for its separate
existence.15
Many states agreed with the reasoning stated in the plurality opinion
in McKeiver, citing the nature of the juvenile justice system in refusing
juveniles the right to a jury trial.16 States juvenile systems were seen as
having a common basis:
[F]or the adversary system, there was substituted a sociologically
oriented . . . informal proceeding, which had as its underlying
concept the protection of the juvenile. Judges thought not in
terms of guilt, but of the childs need for protection or
rehabilitation, under an extension of the doctrine of parens
patriae . . . . No formal criminal charges were laid, rules of
evidence were relaxed, psychiatric and psychological assistance
was sought, many proceedings were not open to the public, and
wide flexibility was allowed in the adoption of corrective
17
measures.
The Kansas Supreme Court had previously followed the rationale of many
states and denied juveniles a right to a jury trial because of the informal and
parental nature of the juvenile justice system.18 In 2008, however, the
Kansas Supreme Court reexamined the question of a constitutional right to
a jury trial in juvenile proceedings.19 The Kansas Supreme Court held that
the unique nature of the juvenile system that McKeiver sought to preserve
had eroded to the point that the right to a jury trial should now be afforded
to juveniles.20
This Comment examines the decision of the Kansas Supreme Court
that found a juveniles right to a jury trial in both the federal and the
Kansas Constitutions. This Comment argues that the majority was correct
in recognizing that differences between the Kansas juvenile justice system
and the adult criminal justice system have eroded to the point where it is

14. Id.
15. Id. at 551.
16. See, e.g., Commonwealth v. Page, 159 N.E.2d 82, 85 (Mass. 1959); In re Gillespie,
782 N.E.2d 140, 145 (Ohio Ct. App. 2002); State ex rel. Upham v. McElligott, 956 P.2d
179, 181-82 (Or. 1998).
17. In re Johnson, 255 A.2d 419, 422 (Md. 1969).
18. See Findlay v. State, 681 P.2d 20, 22 (Kan. 1984).
19. In re L.M., 186 P.3d 164, 165 (Kan. 2008).
20. Id. at 170.
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2010] IN RE L.M. 473

necessary to allow juveniles the same right to a jury trial that is afforded
adults in a criminal context. This Comment also argues, however, that the
majoritys opinion failed to take into account crucial points by the
dissenting and concurring opinions, which would have strengthened the
majority opinion and made it more applicable in other jurisdictions. Part I
examines the background of the juvenile justice system, both nationally and
specifically in Kansas. Part II provides a detailed examination of the
specifics of the majority, concurring, and dissenting opinions of the Kansas
Supreme Court in In re L.M. In Part III, a new analysis of the question is
proposed: by combining the historical analysis utilized in the concurring
opinion with the character- and comparison-driven analysis in the majority
opinion (tempered by the dissents caution against elevating form over
substance), the analytical test used may be broadly applicable in other
jurisdictions struggling with similar issues in juvenile justice.

I. Background of the Juvenile Justice System

A. Inception and Goals of the Formal Juvenile Justice System

The first court specifically tailored to juvenile justice was established
in Chicago, Illinois, in 1899 (Juvenile Court Act).21 The Juvenile Court
Act, passed by the Illinois Legislature, clearly expressed its parental nature
and purpose: that children were to be protected and not punished for their
misdeeds.22 Proceedings prior to the Juvenile Court Act were informal and
flexible, with juveniles who commit[ed] mischief being summoned
before a commissioner who, in a non-adversarial proceeding without
counsel for the juvenile, evaluated the situation and determined whether the
child should be committed to a state-run reform school, not whether
criminal charges should be brought.23 By 1870, however, the Illinois
Supreme Court recognized that minors have a right to due process and held
that [i]n all criminal prosecutions against minors, for grave and heinous
offenses, [juveniles] have the right to . . . a speedy public trial by an
impartial jury.24 This recognition came in response to an already-shifting
course of dealing with juvenile offenders: courts, rather than
commissioners, were deciding the fate of mischief-making juveniles, and

21. See Sanford J. Fox, Juvenile Justice Reform: An Historical Perspective, 22 STAN. L.
REV. 1187, 1187, 1191 (1970). See generally Juvenile Court Act of 1899, 1899 Ill. Laws 131
(current version at 705 ILL. COMP. STAT. ANN. 405/1-2 (West 2007)).
22. Fox, supra note 21, at 1211-12.
23. Id. at 1214-15.
24. People ex rel. OConnell v. Turner, 55 Ill. 280, 287 (1870).
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474 NEW ENGLAND LAW REVIEW [Vol. 44:469

were often sending them to jail instead of the reform schools popular in the
1850s.25 The rest of the country soon followed Illinoiss example; however,
even at the very inception of the juvenile system, the distinction between
juveniles and adults was unclear, as was the question whether juveniles
should be afforded the same due process rights constitutionally guaranteed
to adults in the criminal justice system.26 The disagreement over whether
juveniles possess the same rights to due process as adults has continued to
the present day.27

B. Evolution of the Kansas Juvenile Justice System

The history of the juvenile system in Kansas began with much the
same philosophy as that of the rest of the country; in 1905, the Kansas
Legislature adopted its first juvenile court act.28 This legislation mandated
that juvenile court proceedings were not held to show criminal behavior by
a child, but rather were done in the exercise of the parental power of the
state.29 In 1966, the Kansas Supreme Court interpreted the character of
juvenile justice statutes such as the one in Kansas as reclaim[ing] and
rehabilitat[ing] youthful offenders without subjecting them to the baleful
influence of hardened criminals or branding them with the opprobrium

25. Fox, supra note 21, at 1215-16.

26. Compare Turner, 55 Ill. at 287 (stating that juveniles may be afforded the right to
trial by jury for certain offenses), with Barry C. Feld, A Century of Juvenile Justice: A Work
in Progress or a Revolution that Failed?, 34 N. KY. L. REV. 189, 196 (2007) (stating that
progressive reformers in the early stages of juvenile justice rejected the procedural
safeguards of the adult criminal justice system).
27. Compare In re J.T., 290 A.2d 821, 822-25 (D.C. 1972) (upholding a statute
requiring bench trials for juvenile cases), cert. denied 409 U.S. 986 (1972), and In re
Geiger, 169 N.W.2d 431, 433 (Neb. 1969) (holding that juveniles do not have a right to a
jury trial), with In re Hezzie R., 580 N.W.2d 660, 663 (Wis. 1998) (holding that juveniles
have no constitutional right to a jury trial but striking down a statute allowing juveniles to
receive adult sentence without a jury trial), and id. at 679 (Bradley, J., dissenting) (asserting
that juveniles have a right to a jury trial in all cases), and R.L.R. v. State, 487 P.2d 27, 33
(Alaska 1971) ([W]henever a child . . . is charged with acts which would be a crime,
subject to incarceration if committed by an adult, the Alaska Constitution guarantees him
the right to jury trial.).
28. State v. Fountaine, 414 P.2d 75, 79 (Kan. 1966).
29. Id.
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2010] IN RE L.M. 475

which follows conviction of crime.30 In 1982, Kansas adopted the Kansas

Juvenile Offenders Code (KJOC), which stated:
[T]he [KJOC] . . . shall be liberally construed to the end that
each juvenile coming within its provisions shall receive the care,
custody, guidance, control and discipline . . . as will best serve
the juveniles rehabilitation and the protection of society. In no
case shall . . . any proceedings under the provisions of this code,
be deemed or held to import a criminal act on the part of any
juvenile; but all proceedings . . . shall be deemed to have been
taken and done in the exercise of the parental power of the
31
state.
Interpreting the KJOC, the Kansas Supreme Court found that because
juvenile proceedings are explicitly deemed by the legislature not to be
criminal in nature, there was no constitutional right to a jury trial in
juvenile adjudications.32 In 2006, however, the Kansas Legislature repealed
the KJOC, adopting in its place the Revised Kansas Juvenile Justice Code
(RKJJC).33 In 2008, the Kansas Supreme Court analyzed and interpreted
the revised code, leading to different conclusions regarding both the policy
and purposes of the juvenile system in Kansas and the constitutional
guarantee of a jury trial in juvenile proceedings.34

II. In re L.M.

A. Facts and Procedural History

L.M. was a sixteen-year-old male who was charged and prosecuted in
the juvenile system on one count of aggravated sexual battery and one
count of minor in possession of alcohol.35 One night, after consuming
alcohol, L.M. encountered a female neighbor who was walking home and
grabbed her and asked for a kiss.36 When the neighbor refused to kiss him,

30. Id. at 80.

31. KAN. STAT. ANN. 38-1601 (1982) repealed by Revised Kansas Juvenile Justice
Code, ch. 169, 2006 Kan. Sess. Laws 1060.
32. Findlay v. State, 681 P.2d 20, 22 (Kan. 1984).
33. See Revised Kansas Juvenile Justice Code, ch. 169, 2006 Kan. Sess. Laws 1060
(codified at KAN. STAT. ANN. 38-2301 (Supp. 2008)).
34. See In re L.M., 186 P.3d 164, 168-70 (Kan. 2008).
35. Id. at 165.
36. In re L.M., No. 96,197, 2006 WL 3775275, at *1 (Kan. Ct. App. Dec. 22, 2006)
(unpublished table decision), revd, 186 P.3d 164 (Kan. 2008).
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L.M. allegedly licked and kissed her cheek, held onto her when she tried to
leave, and asked her if she liked to fuck.37
During the adjudication, L.M. requested a jury trial, and the district
court denied his request.38 After a bench trial, L.M. was found guilty and
part of his sentence was that he had to register as a sex offender.39 A
juvenile offender subject to registration requirements must, in addition to
other conditions and obligations, give written notice to law enforcement
within ten days of any subsequent change in address, termination of or
change in employment, or attendance at an institution of higher education.40
The duration of this registration is determined by the sentencing judge.41
L.M. appealed the denial of his request for a jury trial, among other issues,
to the Court of Appeals of Kansas.42
In reviewing the denial of L.M.s request for a jury trial, the court of
appeals conceded that L.M. made some rather good arguments as to why
the rationale of the Findlay decision is no longer compelling under the
current juvenile offender system.43 Under Kansas law, however, the court
of appeals is bound to follow Kansas Supreme Court precedent, unless
there is some indication that the supreme court is departing from its
previous holdings.44 The court of appeals, therefore, affirmed the denial of
a jury trial by the district court.45 L.M. next appealed this decision to the
Kansas Supreme Court, asserting sweeping changes to juvenile justice
procedures in Kansas since 1984 merit renewed scrutiny under applicable
constitutional protections.46
A majority of the Kansas Supreme Court held that, due to
fundamental changes in the character of the juvenile justice system that
previously distinguished it from the adult criminal system, juveniles have
a constitutional right to a jury trial under the Sixth and Fourteenth
Amendments.47 Like the difficulty the United States Supreme Court had in

37.Id.
38.Id.
39.Id.
40.KAN. STAT. ANN. 22-4904 (2007).
41.Id. 22-4904(a)(7).
42.See In re L.M., No. 96,197, 2006 WL 3775275, at *1 (Kan. Ct. App. Dec. 22, 2006)
(unpublished table decision), revd, 186 P.3d 164 (Kan. 2008).
43. Id.
44. Id.
45. Id.
46. In re L.M., 186 P.3d 164, 165 (Kan. 2008).
47. Id. at 170.
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2010] IN RE L.M. 477

McKeiver, where it held that a right to trial by jury was not constitutionally
guaranteed,48 the Kansas Supreme Court could not achieve absolute
uniformity in its rationale for finding a right to trial by jury for juveniles.49
One justice concurred in the holding that there is a constitutional right to a
jury trial, but based her conclusion on rights guaranteed by the Kansas
Constitution Bill of Rights as opposed to the Federal Constitution.50
Additionally, one justice of the Kansas Supreme Court filed a dissenting
opinion, focusing on the discrete differences that still exist between the
adult and juvenile justice codes of Kansas.51

B. The Majoritys Rationale: Kansas Bill of Rights and Changes in

Juvenile Code Necessitate Right to a Jury Trial
First, the majority addressed L.M.s claim to a constitutional right to
trial by jury as guaranteed by the Sixth Amendment to the United States
Constitution.52 The majority acknowledged Findlay, a case in which,
twenty-four years earlier, the supreme court held that neither the federal
nor state constitutions gave juveniles a constitutional right to a jury trial.53
Findlay adopted the United States Supreme Courts reasoning in McKeiver,
discussed above, holding that the constitutional right to a jury trial
guaranteed in the Sixth and Fourteenth Amendments does not extend to
juveniles.54 The Kansas Supreme Court, in In re L.M., analyzed two issues
in determining whether to hold with precedent or to interpret the
constitution in a new light: (1) whether the changes to the juvenile justice
code in Kansas sufficiently eroded the child-cognizant, paternal, and
rehabilitative purposes of the juvenile offender process such that
recognition of a juveniles right to a jury trial under the Federal

48. See McKeiver v. Pennsylvania, 403 U.S. 528, 547 (1971) (Blackmun, J.) (plurality
opinion) (stating that juvenile justice system policy goals are distinguishable from those of
the adult criminal system); id. at 553 (White, J., concurring) (stating that substantive
differences between juvenile and adult systems are enough to justify not requiring jury trials
for juveniles); id. at 553-54 (Brennan, J., concurring and dissenting) (stating that states are
not bound to provide jury trials for juveniles as long as some other aspect of the juvenile
system protects the interests that a right to a jury trial is intended to serve); id. at 557
(Harlan, J., concurring) (stating that criminal jury trials are not constitutionally required of
the states for juveniles or adults, either as a matter of Sixth Amendment law or due process).
49. See In re L.M., 186 P.3d at 172 (Luckert, J., concurring).
50. Id.
51. Id. at 175 (McFarland, C.J., dissenting).
52. Id. at 166 (majority opinion).
53. Id.; Findlay v. State, 681 P.2d 20, 22 (Kan. 1984).
54. In re L.M., 186 P.3d at 166.
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478 NEW ENGLAND LAW REVIEW [Vol. 44:469

Constitution is now required; and (2) whether juveniles are entitled to a

jury trial under the Kansas Constitution.55

1. Similarities Between Juvenile Justice and Adult Criminal

Codes

a. Language
In analyzing L.M.s claim under the Federal Constitution, the Kansas
Supreme Court compared the language of the KJOC (the controlling law
when Findlay was decided) with the RKJJC (the current law).56 The KJOC
focused on rehabilitation of juveniles through the states parental role in
providing control, discipline, and guidance.57 The legislature enumerated
the purpose of the RKJJC, on the other hand, as to promote public safety,
hold juvenile offenders accountable for their behavior and improve their
ability to live more productively and responsibly in the community.58 The
Kansas Supreme Court determined that the new purposes of the RKJJC
were more aligned with the legislative intent for adult criminal justice
statutes than with the previous juvenile justice code.59 The court saw
similarities between the adult criminal justice statutes and the RKJJC
because the adult criminal statutes were also enacted to focus on
protecting the public by incarcerating dangerous offenders for a long
period of time, holding offenders accountable by prescribing appropriate
consequences for their actions, and encouraging offenders to be more
productive members of society by considering their individual
characteristics at sentencing.60
Additionally, the RKJJC includes language similar to that found in
the Kansas Criminal Code, language that had not been included in the
previous juvenile justice code.61 Under the new juvenile justice code,
juveniles are required to plead guilty, not guilty, or nolo contendere, just
as adults are required to do; previously, juveniles were required only to
admit or deny the allegations against them or plead nolo contendere.62
What was previously a dispositional proceeding became a sentencing

55. Id. at 168-72.

56. Id. at 168.
57. Id.
58. Id.
59. Id.
60. In re L.M., 186 P.3d at 168; see also KAN. STAT. ANN. 21-4601 (2007).
61. In re L.M., 186 P.3d at 168-69.
62. Id. at 168.
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2010] IN RE L.M. 479

proceeding, what were previously known as [s]tate youth center[s]

became [j]uvenile correctional facilit[ies], and the term of commitment
became the term of incarceration.63

b. Structure
Structurally speaking, the RKJJC also more closely parallels the
Kansas Sentencing Guidelines for adults than the previous juvenile justice
statutes; it establishes a sentencing structure for juveniles based on offense
levels and, in some circumstances, the individuals history of juvenile
adjudications.64 In addition, the RKJJC sentencing structure allows
consideration of aggravating factors, just as the adult sentencing matrix
does.65 The RKJJC further emulates adult criminal codes in that it allows
for the opportunity to earn good time credits to reduce a term of
incarceration.66 In addition, both adults and juveniles are now eligible for
probation, house arrest, conservation camps, community-based programs,
or incarceration in a correctional facility; may be ordered to either pay
restitution or participate in mediation; or may be ordered to pay a fine.67

c. Loss of Protective Provisions in Previous Juvenile

Justice Code
The majority in In re L.M. also noted the RKJJCs removal of some of
the protective provisions included in previous juvenile justice statutes.68
Under the prior code, juvenile proceedings, court files, and police records
of juveniles under the age of sixteen were confidential.69 Under the RKJJC,
however, the official file must be public unless a judge orders it closed in
the case of a juvenile under age fourteen, and police records for juveniles
fourteen years old and older fall under the same public disclosure
provisions as records for adults.70
All of these changes to the juvenile justice code, considered
cumulatively, eroded the benevolent parens patriae character that
distinguished [the juvenile justice system] from the adult criminal

63. Id. at 169.

64. Id.
65. Id.
66. Id.
67. In re L.M., 186 P.3d at 169.
68. Id. at 169-70.
69. Id. at 169.
70. Id. at 170.
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480 NEW ENGLAND LAW REVIEW [Vol. 44:469

system.71 Because both the Findlay court and the McKeiver Court relied
on that character in holding that the right to a jury trial was not guaranteed
to juveniles, the subsequent erosion necessitated the Kansas Supreme
Courts holding that neither McKeiver nor Findlay are binding precedent.72
Therefore, the Kansas Supreme Court held that the Sixth and Fourteenth
Amendments provide a constitutional right to a jury trial to juveniles as
well as adults.73

2. The Kansas Constitution

The Kansas Supreme Court also found a basis for L.M.s right to a
jury trial in the language of the Kansas Constitution Bill of Rights, holding
that proceedings under the RKJJC fit within the parameters of section 10 of
the Kansas Constitution Bill of Rights.74 Section 10 of the Kansas
Constitution Bill of Rights provides:
In all prosecutions, the accused shall be allowed to appear and
defend in person, or by counsel; to demand the nature and cause
of the accusation against him; to meet the witness face to face,
and to have compulsory process to compel the attendance of the
witnesses in his behalf, and a speedy public trial by an impartial
jury of the county or district in which the offense is alleged to
have been committed.75
The Kansas Supreme Court has long construed the phrase all
prosecutions from this section to mean all criminal prosecutions for
violations of the laws of the state.76 The language guaranteeing a jury trial
in all prosecutions was examined and interpreted as early as 1883, when
the Kansas Supreme Court stated that a civil prosecution does not
necessarily invoke the right to a trial, but where the charge is of an act . . .
criminal at common law, criminal in its nature, and an offense against the
public, the constitutional guaranty [sic] is applicable, and cannot be ignored
or disregarded.77

71. Id.
72. Id.
73. In re L.M., 186 P.3d at 170.
74. Id. at 172.
75. KAN. CONST. Bill of Rights, 10.
76. See State ex rel. Curtis v. City of Topeka, 12 P. 310, 316 (Kan. 1886).
77. See Rolfs v. Shallcross, 1 P. 523, 526-27 (Kan. 1883).
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 481

Because the RKJJC refers to its proceedings as prosecutions,

because proceedings under the RKJJC are based on allegations that
juveniles have violated the criminal laws of this State, and because the
RKJJC stripped the juvenile code of its previous parens patriae nature, the
Kansas Supreme Court determined that juvenile proceedings now fall in the
category of all prosecutions as discussed in the Kansas Bill of Rights.78
Therefore, juveniles also have the right to a jury trial under the Kansas
Constitution.79

C. The Concurrences Rationale: Historical Analysis and the Kansas

Constitution Require a Limited Right to a Juvenile Jury Trial
In her concurring opinion, Justice Luckert found that the district court
erred in denying L.M. a jury trial, but she based her decision on section 5
of the Bill of Rights of the Kansas Constitution, not section 10 of the
Kansas Bill of Rights or the Sixth and Fourteenth Amendments to the
United States Constitution.80 Section 5 of the Bill of Rights of the Kansas
Constitution states that [t]he right of trial by jury shall be inviolate.81 An
early interpretation of this provision by the Kansas Supreme Court
interpreted section 5 to mean that a jury trial is preserved in all cases in
which it existed prior to the adoption of the constitution.82
Relying on this plain language, Justice Luckert analyzed a juveniles
right to a jury trial from a historical viewpoint.83 Citing two California
Court of Appeal decisions, Justice Luckert examined English common law
in the first half of the nineteenth century, which is relevant to Kansas
because the Kansas Constitution became effective in 1861.84 Therefore, if a
right to a jury trial was in existence at that time, it should still be preserved
today under section 5 of the Kansas Bill of Rights.85 Ultimately, Justice
Luckert concurred with the California Court of Appeals finding that, at the
relevant time, the legislative history and comments of members of
Parliament . . . provide sound support for [the] conclusion that [d]espite
the parens patriae relationship between the English government and its

78. In re L.M., 186 P.3d at 172.

79. Id.
80. Id. at 172-73 (Luckert, J., concurring).
81. KAN. CONST. Bill of Rights, 5.
82. Rolfs, 1 P. at 525-26.
83. In re L.M., 186 P.3d at 173-75 (Luckert, J., concurring).
84. Id. at 174.
85. See Rolfs, 1 P. at 525-26.
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482 NEW ENGLAND LAW REVIEW [Vol. 44:469

minor citizens, those same minors enjoyed an unequivocal right to jury trial
when accused of crime in the law courts.86
Additionally, the Kansas Supreme Court has noted that at common
law a minor at least fourteen years old was presumed capable of
committing a crime and the court recognized that the common law treated
those juveniles as adults in the criminal justice system.87 Therefore, Justice
Luckert concluded, section 5 of the Kansas Constitution Bill of Rights
guarantees a right to a jury trial to all juveniles at least fourteen years old
who are charged with a felony.88 Under this analysis, L.M. was entitled to a
trial by jury, as he was sixteen years old and charged with aggravated
sexual battery, which is a felony.89
Regarding the application of the Sixth Amendment, Justice Luckert
stated that the due process considerations relied upon by the majority were
largely unaffected by the revisions to the Kansas juvenile code in many
juvenile cases.90 There are still enough unique characteristics of the
juvenile system when compared with the adult system to justify different
treatment of juveniles and adults when considering the right to a jury trial.91
When these options apply and are utilized, the rationale of McKeiver and
Findlay remains valid and applicable.92
Justice Luckert, however, believed that for a discrete population of
juveniles, the RKJJC does not treat juveniles differently than adult criminal
offenders; because of prior juvenile adjudications, for example, some
juveniles are treated much the same as an adult charged with the same
crime.93 For a juvenile in this situation, the denial of a jury trial is not
constitutionally justified on due process grounds.94

86. In re L.M., 186 P.3d at 174 (Luckert, J., concurring) (quoting In re Javier A., 206
Cal. Rptr. 386, 398 (Cal. Ct. App. 1984)).
87. Id.
88. Id. at 174-75.
89. Id. at 175.
90. Id. at 173.
91. Id. When these options apply and are utilized, the rationale of McKeiver and
Findlay remains valid and applicable. Id.
92. In re L.M., 186 P.3d at 173 (Luckert, J., concurring).
93. Id.
94. Id.
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 483

D. The Dissents Rationale: The Majority Placed Form over

Substance
Chief Justice McFarland, in her dissent in In re L.M., responded to
each of the four bases on which the majority rested its determination that
the RKJJC became sufficiently parallel to the adult criminal justice code to
require that juveniles be afforded the same right to a jury trial as adults.95
She identified the four justifications as: (1) the shifting of policy goals from
rehabilitation to public protection and juvenile accountability; (2) parallel
language between the juvenile and adult justice codes; (3) closely similar
sentencing schemes in the two codes; and (4) elimination of some
previously required confidentiality features in the juvenile justice code.96
Warning of the dangers of placing form over substance, Chief Justice
McFarland stated the majority overstates and overemphasizes the
changes, which do not ultimately require recognition of a juveniles
constitutional right to a jury trial.97

1. Policy Goals Did Not Shift from Previous to Revised

Juvenile Code
While the RKJJC has much more specific language regarding the
ways in which its goals will be met, the dissent contended that the goals
themselves, protection of the public and rehabilitation of juvenile
offenders, remain consistent.98 Chief Justice McFarland looked to the
policy discussion in both the KJOC and the RKJJC and compared the
language, concluding that, although differently worded, the goals remain
the same.99 Like the RKJJC, the KJOC stated in its plain language that
protection of the public was a goal.100 By the express declaration of the
legislature, the KJOC was meant to be liberally construed so that its
application would best serve the juveniles rehabilitation and the
protection of society.101 The RKJJC, similarly, states its primary
goals . . . are to promote public safety, hold juvenile offenders accountable

95. Id. at 175-82 (McFarland, C.J., dissenting).

96. Id. at 175-76.
97. Id. at 175.
98. In re L.M., 186 P.3d at 176 (McFarland, C.J., dissenting).
99. See id.
100. Id.
101. Kansas Code for the Care of Children, ch. 182, 1982 Kan. Sess. Laws 765, 798
(emphasis added), repealed by Revised Kansas Juvenile Justice Code, ch. 169, 2006 Kan.
Sess. Laws 1060.
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484 NEW ENGLAND LAW REVIEW [Vol. 44:469

for their behavior and improve their ability to live more productively and
responsibly in the community.102 While the majority noted a definite shift
from rehabilitation-oriented goals to public protection as the primary
goal,103 the dissent saw no such differentiation.104 Additionally, the goals of
the RKJJC, even if more closely aligned with the adult criminal code than
with the previous juvenile code, retain an aspect of rehabilitation; the
dissent saw no language in the adult criminal code suggesting such a
goal.105

2. Language Shifts Not Indicative of Underlying Change

In responding to the majoritys point that the shift in language of the
RKJJC more closely mirrors the adult criminal justice code, the dissent
cautioned that form must not be placed over substance.106 Conceding that
there have been definite language changes,107 Chief Justice McFarland
pointed to one example of such a change and illustrated why the
terminology used may not indicate a true shift, either practical or
ideological:
The facilities denominated as state youth centers, and now
juvenile correctional facilities, are one and the same. [The Youth
Center at Topeka was renamed Topeka Juvenile Correctional
Facility, the Youth Center at Larned was renamed Larned
Juvenile Correctional Facility, etc.] Regardless of their names,
these facilities have always been institutions where juvenile
offenders are sent to serve a period of court-ordered
confinement.108

3. Sentencing Schemes Still Show Significant Differences for

Adults and Juveniles.
The majority found that the sentencing schemes in the juvenile justice
system were revised through the RKJJC and that the revised Act brought
sentencing of juveniles more closely into alignment with the adult criminal

102. KAN. STAT. ANN. 38-2301 (Supp. 2008).

103. See supra Part II.B.1.
104. In re L.M., 186 P.3d at 176 (McFarland, C.J., dissenting).
105. Id. at 176-77.
106. Id. at 177.
107. See supra Part II.B.1.
108. In re L.M., 186 P.3d at 177 (McFarland, C.J., dissenting).
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 485

system.109 The dissent, however, turned to the [s]ignificant differences

that remain between the two.110 Although certain aspects of the sentencing
structure, including the juvenile judges discretionary ability to impose
sentences that depart upward from prescribed sentencing guidelines, are
similar to the structure in place in the adult criminal justice system, there is
still a difference in the final sentences imposed on juveniles and adults for
the same criminal behavior.111
For example, a juvenile adjudicated for an offense which if
committed by an adult would be classified as a nondrug severity
level 1 felony offense, would face a minimum [commitment]
term of [twenty-four] months and a maximum term that could
not extend beyond the juvenile [becoming twenty-two years and
six months old].112
An adult convicted of the same crime, with no criminal history, would face
a term of 147 to 165 months of imprisonment.113 Further, juvenile judges
may not impose consecutive sentences while judges in the adult criminal
system may, and juveniles must age out of a juvenile correctional facility
upon attaining the age of twenty-two years and six months.114
Chief Justice McFarland pointed out several other differences
between the sentencing schemes of the juvenile justice and adult criminal
justice systems as well: incarceration is discretionary in juvenile
adjudications, while in adult sentencing it may be mandatory; juvenile
judges may modify sentences after imposition, while judges in the adult
criminal justice system do not have that discretionary power; and the
mechanism of extended-jurisdiction juvenile prosecution is peculiar to the
juvenile justice system.115 In an extended-jurisdiction juvenile prosecution,
the offender is sentenced to both an adult and a juvenile sentence but the
adult sentence is stayed on the condition that the offender meets the
requirements of the juvenile sentence.116 The juvenile court may revoke the
juvenile sentence, impose the adult sentence, and transfer jurisdiction to an
adult court if the offender violates the juvenile sentence.117 Obviously, the

109. See supra Part II.B.1.

110. See In re L.M., 186 P.3d at 177-79 (McFarland, C.J., dissenting).
111. See id. at 177-78.
112. Id. at 177.
113. Id.
114. Id. at 177-78.
115. Id. at 178.
116. In re L.M., 186 P.3d at 178.
117. Id.
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486 NEW ENGLAND LAW REVIEW [Vol. 44:469

converse, an adult who could be transferred to a different, more severe

court, is not practicable; this illustrates the continuing recognition of the
differences between the adult and juvenile systems and evidences a last-
ditch effort to extend the favorable protections of juvenile court and the
benefits of its less severe sentences to juvenile offenders who previously
would have been waived to adult court.118
Additionally, sentencing options are different for juveniles and
adults.119 Juveniles have access to a diversionary program to avoid
prosecution that, unlike adult diversion, is available before charges are
filed.120 Intake procedures when an individual is taken into custody by law
enforcement differ from juveniles to adults as well.121 Juveniles are
generally taken to a local juvenile intake and assessment program for
evaluation and may be released from there to a parent or legal guardian,
with or without conditions, if the intake assessment worker believes it is in
the best interests of the child to do so.122 Also pointing to the rehabilitation
goals of the juvenile justice system, Chief Justice McFarland cited the
procedure, unique to the Kansas juvenile process, by which local citizen
review boards may become involved by evaluating a juvenile offenders
progress and recommending future action to a judge involved with a
juvenile offenders case.123

4. Protective Provision Changes Do Not Significantly Erode

Parens Patriae.
Finally, Chief Justice McFarland addressed the majoritys contention
that reduction of confidentiality and other protective provisions under the
RKJJC eroded the parens patriae character of the juvenile system.124 She
pointed out that there are only two differences between the former and
revised versions of the juvenile justice code with respect to confidentiality
of juvenile records: (1) the age of protection was lowered from fifteen to
thirteen years old, and (2) the juveniles file is not open for public
inspection unless a judge determines that such inspection is not in the best
interests of the juvenile and the juvenile is under age fourteen.125

118. Id. at 179.

119. See id.
120. Id.
121. See id.
122. In re L.M., 186 P.3d at 179.
123. Id. at 180.
124. See id. at 181; see supra Part II.B.1.c.
125. In re L.M., 186 P.3d at 181 (McFarland, C.J., dissenting).
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 487

In total, Chief Justice McFarland concluded that [t]he changes to the

juvenile code cited by the majority have not so eroded the features of the
juvenile system that distinguish it from the adult system that it can be said
that the rationale underlying McKeiver and Findlay is no longer valid.126
For further support, Chief Justice McFarland noted that the majoritys
holding was against the weight of authority from other jurisdictions.127

III. Incorporating the Opinions into a Stronger Analysis

The Kansas Supreme Courts holding in In re L.M. is a bold move
that affords an across-the-board right to jury trials to juveniles under the
Sixth and Fourteenth Amendments to the United States Constitution and
section 10 of the Kansas Constitution Bill of Rights.128 Recognizing that
the ideal of rehabilitation as the goal of the juvenile justice system is no
longer a reality in Kansas under the current juvenile justice code, a majority
of the Kansas Supreme Court determined that such changes superseded the
United States Supreme Courts reasoning in McKeiver and the Kansas
Supreme Courts own prior reasoning in Findlay.129 Thus, the Kansas
Supreme Court was no longer bound to follow those precedential cases.130
The Kansas Supreme Court was correct in this reasoning because reality
has shifted in the juvenile justice system.131
In place of an ideal system, the reality of the juvenile court system
has become one of punishment for the offense and has led to a system
through which juveniles are processed in a manner nearly identical to
[adult] criminals.132 This was amply demonstrated by the Kansas Supreme
Court to be the case under the RKJJC through the courts detailed

126. Id.
127. Id. at 182; see also Valdez v. State, 801 S.W.2d 659, 660-61 (Ark. Ct. App. 1991)
(rejecting the argument that juvenile adjudications under the revised code were similar to
criminal prosecutions and therefore required a right to a jury trial); State ex rel. D.J., 817
So.2d 26, 32 (La. 2002) (holding that statutes that blur[] the distinction between adult and
juvenile proceedings do not necessarily offend due process to the extent that a jury trial
would be required); State v. Chavez, 180 P.3d 1250, 1254 (Wash. 2008) (holding that
amendments to the juvenile justice system did not so alter it in nature that juveniles charged
with violent and serious violent offenses were afforded the right to a jury trial).
128. See supra Part II.B.
129. In re L.M., 186 P.3d at 170.
130. Id.
131. See Gerald P. Hill, II, Revisiting Juvenile Justice: The Requirement for Jury Trials
in Juvenile Proceedings Under the Sixth Amendment, 9 FLA. COASTAL L. REV. 143, 165
(2008).
132. Id.
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488 NEW ENGLAND LAW REVIEW [Vol. 44:469

discussion of policy changes and closer alignment with the adult criminal
justice system as evidenced through language changes in the revised
code.133 However, the majority opinion would have done well to consider
Chief Justice McFarlands caution about placing the value of form over
substance.134 By declining to use the historical analysis proffered by Justice
Luckert in her concurrence, the majority of the Kansas Supreme Court
largely based its rationale on specific language of the KJOC and the
RKJJC, opening the door to Chief Justice McFarlands criticism that the
majority opinion was too narrowly focused.135

A. Language and Policy Goals: Heeding the Dissents Caution

While realistic assessment of how changes in statutory language
imply changes in legislative intent is a valid analytical tool, as Chief Justice
McFarland pointed out in her dissent, some of the language changes made
in the revised code are mere renaming of facilities that may not actually
mean a change in the nature of the activities undertaken therein.136 It is
dangerous to rely too heavily on the semantics of a statute when
interpreting against the weight of precedent.137 The Washington Supreme
Court recognized this danger when it chose to interpret revised language in
a juvenile justice code in concordance with the long-established goals of
the juvenile justice system:
For more than [seventy] years, this state has been trying to avoid
accusing and convicting juveniles of crimes. While the [more
recent] Juvenile Justice Act . . . placed more emphasis on a
juveniles criminal activity than [the previous version], . . . this
new emphasis may [do] as much to rehabilitate, correct and
direct an errant youth as does the prior philosophy . . . . Even
though the Legislature changed the methods of dealing with
juvenile offenders, it did not thereby convert juvenile
proceedings into a criminal offense atmosphere totally
comparable to an adult criminal offense scenario. The new
legislation clearly does not set up a rigidly punitive system
which mirrors in every respect the adult criminal justice system.
To interpret [the statute at issue in this way] would mean

133. See supra Part II.B.

134. In re L.M., 186 P.3d at 177 (McFarland, C.J., dissenting).
135. See supra Part II.D.
136. See supra Part II.D.2.
137. See State v. Schaaf, 743 P.2d 240, 247 (Wash. 1987).
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 489

overlooking . . . the attempts of the juvenile justice system to

distinguish juvenile offenders from their adult counterparts.138
This attempt to distinguish juvenile offenders from adult criminals was
instrumental in the creation of the juvenile justice system as discrete from
the adult criminal system.139 Had the majority in In re L.M. merely relied
upon changes in language such as youth center to correctional facility,
it would have incorrectly disregarded the important and longstanding goals
behind the juvenile justice system.140 Here, however, the legislature
changed the language of the juvenile code to such an extent and so
pervasively that the majority was justified in construing the amended code
as a result of a shift in the policy goals behind the statute itself.141
The rehabilitative goals of the juvenile justice system and the
differentiation between the juvenile and adult systems are important and
should not be lightly discarded in the face of changed statutory provisions
for juvenile justice.142 Indeed, the dissent and majority opinions in In re
L.M. closely examined the similarities and differences between the
underlying policy goals of the juvenile and adult justice systems.143 The
concurring opinion by Justice Luckert, however, analyzed the juvenile right
to a jury trial in a historical light, which may be more broadly accepted and
applicable in jurisdictions outside of Kansas.144 Analysis of a juveniles
right to a jury trial under section 5 of the Kansas Constitution Bill of Rights
is not addressed by the majority and is not even mentioned by the
dissent.145

B. The Historical Analysis: A Compromise

Justice Luckert, citing support from the California Court of Appeal,
utilized a historical analysis test.146 Ultimately, she concluded that because
minors charged with a felony were provided the right to a jury trial under
English common law at the time of ratification of the Kansas Constitution
and because Kansas cases have recognized common-law treatment of

138. Id. (internal citations omitted).

139. See supra Part I.A.
140. See Schaaf, 743 P.2d at 247.
141. See supra Part II.B.
142. See Gordon A. Martin, Jr., The Delinquent and the Juvenile Court: Is There Still a
Place for Rehabilitation?, 25 CONN. L. REV. 57, 58-66 (1992).
143. See supra Parts II.B, D.
144. See supra Part II.C.
145. In re L.M., 186 P.3d 164, 173 (Kan. 2008) (Luckert, J., concurring).
146. See supra Part II.C.
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490 NEW ENGLAND LAW REVIEW [Vol. 44:469

juveniles fourteen years old or older as part of the adult criminal system,
section 5 of the Kansas Constitution Bill of Rights grants a right to a trial
by jury to all juveniles [fourteen] years of age or older who are charged
with a felony.147 This sort of historical analysis has long been adopted and
approved of by the United States Supreme Court.148 In 1908, the Supreme
Court was asked to rule on whether a judge erred in instructing a jury that a
criminal defendants failure to take the stand and deny charges made
against him was a violation of his Constitutional due process rights.149 The
right to exemption from testimonial self-incrimination was examined by the
Court from a historical viewpoint: At the time of the formation of the
Union the principle that no person could be compelled to be a witness
against himself had become embodied in the common law and
distinguished it from all other systems of jurisprudence.150 Although a
historical inquiry is not the only factor to consider in a due process
analysis, the rights historical pedigree is still an important
consideration.151
In Duncan v. Louisiana, the United States Supreme Court again used
traditional inquiry methods and looked into legal practice regarding jury
trials at the time of the framing of the Constitution.152 Writing for the
Court, Justice White found jury trials were guaranteed by [t]he
constitutions adopted by the original States and the constitution of every
State entering the Union thereafter in one form or another.153 Further,
Justice White stated that [e]ven such skeletal history is impressive support
for considering the right to jury trial in criminal cases to be fundamental to
our system of justice, an importance frequently recognized in the opinions
of this Court.154
Justice Luckerts application of such a time-honored analytical
technique in determining that the right to a jury trial is afforded under
section 5 of the Kansas Constitution Bill of Rights is solidly based in

147. In re L.M., 186 P.3d at 174-75 (Luckert, J., concurring).

148. See Ronald J. Krotoszynski, Jr., Dumbos Feather: An Examination and Critique of
the Supreme Courts Use, Misuse, and Abuse of Tradition in Protecting Fundamental
Rights, 48 WM. & MARY L. REV. 923, 942-43 (2006).
149. Twining v. New Jersey, 211 U.S. 78, 90-91 (1908), overruled in part on other
grounds by Malloy v. Hogan, 378 U.S. 1 (1964).
150. Id. at 91.
151. See Krotoszynski, supra note 148, at 944.
152. Id. at 946.
153. Duncan v. Louisiana, 391 U.S. 145, 153 (1968).
154. Id. at 153-54.
SELIG FINAL 4/19/2010 10:43:04 AM

2010] IN RE L.M. 491

analytical precedent by the United States highest court.155 Because the

analytical process used in the concurring opinion is based upon history and
not upon the specific statutory language of the RKJJC as compared with
both the KJOC and the adult criminal code in Kansas, the concurring
opinion is more likely to be broadly applied in other jurisdictions.156 By not
focusing on the specifics of the juvenile code at issue and focusing on the
larger issue of a historical constitutional right to a jury trial for certain types
of juvenile offenders, Justice Luckert seems to have found a compromise
among the majority and dissents argument regarding the legislative intent
and policy goals underlying the RKJJC.157 Regardless of whether the
Kansas Legislature intended to restrict the parens patriae nature of the
juvenile justice system in Kansas to the extent that a juvenile would be
afforded a constitutional right to a jury trial, Justice Luckerts historical
analysis is legitimate; indeed, Justice Luckert did not discuss in detail the
nature of the current juvenile justice code in Kansas.158
Some commentators and highly esteemed jurists have warned that
[i]f English common law established the requirements of due process, the
procedure of the first half of the seventeenth century would be fastened
upon the American jurisprudence like a straightjacket, only to be unloosed
by constitutional amendment.159 This caution is overcome in this
instance, however, by the existence of recent Kansas cases that support
Justice Luckerts assertion that Kansas law has recognized common-law
treatment of juveniles as part of the adult criminal prosecution system.160
When considered in tandem with the majoritys convincing argument that
under the RKJJC, the distinction between juvenile offenders and adult
criminals is becoming ever narrower,161 the historical analysis concretely

155. See id.; Twining v. New Jersey, 211 U.S. at 90-91, overruled in part on other
grounds by Malloy v. Hogan, 378 U.S. 1 (1964).
156. Cf. Roper v. Simmons, 543 U.S. 551, 560 (2005) ([E]xpansive language in the
Constitution[] must be interpreted according to its text, by considering history, tradition, and
precedent, and with due regard for its purpose and function in the constitutional design.);
State v. Sapps, 820 A.2d 477, 481-91, 495-97 (Del. Fam. Ct. 2002) (applying historical
analysis in determining whether Megans Law may be applied to minors); State v. Smith, 75
P.3d 934, 940 (Wash. 2003) (stating that [t]he purpose of [the relevant constitutional
provision] was to preserve inviolate the right to a trial by jury as it existed at the time of the
adoption of the constitution).
157. See supra Part II.
158. In re L.M., 186 P.3d 164, 172-75 (Kan. 2008) (Luckert, J., concurring).
159. Krotoszynski, supra note 148, at 943 (quoting Twining, 211 U.S. at 101).
160. In re L.M., 186 P.3d at 174 (Luckert, J., concurring).
161. See supra Part II.B.1.
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492 NEW ENGLAND LAW REVIEW [Vol. 44:469

supports the assertion that juveniles are guaranteed the right to a jury trial
by section 5 of the Kansas Constitution Bill of Rights if the juvenile is
fourteen years of age or older and charged with a felony offense.162
Therefore, the majority of the Kansas Supreme Court would have had a
more solidly reasoned opinion had it incorporated the concurrences
historical analysis and heeded the dissents warning that it placed too much
emphasis on form over substance of the RKJJC. Standing alone, none of
the three opinions fully addresses the constitutional issue; components of
each must be incorporated to create a truly comprehensive analysis.

CONCLUSION
The Kansas Supreme Court, in its groundbreaking decision in In re
L.M., held that there is a constitutional guarantee to a jury trial for juvenile
offenders.163 Although the majority and dissenting opinions focused mainly
on the specific language and revisions to the Kansas Juvenile Justice Code,
it is the concurring opinions careful historical analysis that allows this
decision to be widely influential in other jurisdictions. When combined
with the majoritys convincing argument that the parens patriae nature of
the juvenile justice system has sufficiently eroded to require giving
juveniles the right to a jury trial and the dissents important caution that
form not take precedence over substance, the historical examination
provides the final step in creating an analysis of a juveniles right to a jury
trial in todays changing juvenile justice system. This analytical method is
not specific to Kansas, as the majority or dissents reasoning may seem if
considered alone, but is broadly applicable and may be used by other
jurisdictions in addressing the question of how the changing nature of the
juvenile justice system affects a juveniles right to a jury trial.

162. In re L.M., 186 P.3d at 172-75 (Luckert, J., concurring).

163. Id. at 170.