Presentation given at a continuing Legal Education Seminar at the University of Kansas in Lawrence, KS, December 2008.

1. United Way
Helps Here!
Kansas Legal Services is a
statewide legal services
organization that seeks to help the
impoverished with legal problems.
KLS provides an array of unique
services, including employment
training. KLS makes a difference
by providing quality legal
representation. Areas of practice
include Domestic & Family Law,
Landlord Tenant, Consumer
Protection, Elder Law, Juvenile
Law, Education Law, Disability, etc.
If you, or someone you know needs help, please call
800-723-6953800-723-6953

2. Juvenile Offender Case Law Update
With discussions regarding future constitutional issues in juvenile court. . .
Changing Juvenile Courts, Expanding Constitutional Rights of Children.

4. In Re L.M., 186 P.3d 164 (Kan. 2008)
• Explain how the case got started
• Outline the case itself
• Outline the decision of the Kansas Supreme
Court, and its reasoning in its ruling (History)
• Outline the obstacles in setting this precedent
and in setting similar, future precedents
• Discuss the case’s implication, and how it can
influence your practice

5. Setting Up the Litigation!
Identifying the issue, and
mapping out a plan.
Good organization.
The right case. . .
A willing client!
Optimism. Unfortunately, I
also knew that I had to lose
in order to appeal and
make change!

6. Jousting the Windmill
Once I had a grasp of
the issue I was then
able to begin the
process of litigating
the case. It
required a clear
methodical plan
that was logically
implemented.

7. False Starts and Frustrations
It became important to keep in mind where it was
that I was ultimately going to end up.
UNFORTUNATELY
I also had to lose before any change would occur.

8. Contemporaneous Objections
The general rule in Kansas is that a
contemporaneous objection must be
made, and it should be specific enough
that the trial judge can rule intelligently
upon the objection, and the specific
contemporaneous objection must be
made known to the opposing counsel
when the objection is lodged.

9. Preparing for the L.M. Case
It all started with Parens Patriae

10. What was In Re L.M. about anyway? (THE FACTS)
L.M. is a juvenile offender case out of Finney County Kansas. The
kid was charged with Aggravated Sexual Battery, a violation of
K.S.A. 21-3518, a level five person felony and minor in
consumption of alcohol. He requested a jury trial. It was denied.
The facts of the case can be summarized as an incident involving
a midnight encounter with a female neighbor. She was 27 and
he was 16. L.M. asked the female for a cigarette and she gave
him one. L.M. grabbed or hugged the neighbor requesting a kiss.
When the neighbor refused L.M. allegedly licked and kissed her
on the cheek and held on to her as she attempted to walk away.
L.M. asked her if she “liked to fuck” and the encounter ended
with no injury to anyone and L.M. stating, “bye baby.” L.M.
stumbled home drunk.

11. Brown vs Hall (1930)
FACTS OF THE CASE
15 Year old girl was out
late, drinking, hanging
out at poolrooms and
with vicious immoral
people, including
thieves. She had
broken no laws! It
wasn’t even illegal for a
15 year old to drink
beer then.
A Brief History of the Jury Trial
Issue In Kansas

12. Brown vs Hall (1930)
A Kansas Case, 129 Kan. 859
ATTORNEY’s ARGUMENT
This is a “Quasi Criminal”
matter and her liberty
is at stake! She
deserves a jury trial.
THIS ISN’t FAIR!

13. Brown vs Hall (1930)
A Kansas Case, 129 Kan. 859
THE COURT RESPONDED
This is not a criminal matter,
it is a civil matter, and the
child’s future is at stake
because the child needs
proper parental care!

14. The Brown Court’s Holding
A proceeding against a delinquent and neglected child is
not a criminal one. It is an inquiry to ascertain whether the
child shall be placed under the direct and immediate
control of the state for the good of the child, in securing
for it proper nurture, training and education, not for the
purpose of punishing it for any acts that it ought not to
have committed. (State v. Dunn, 75 Kan. 799, 90 P. 231;
State v. Dubray, 121 Kan. 886, 250 P. 316.) The judgment
of the district court is not a punishment for crime
committed; it is a finding of fact on which action for the
good of the child is based. (In re Turner, 94 Kan. 115, 116,
145 P. 871.). Emphasis added.

15. Kansas Legislature Codified the
Court’s Holding; see GS 1949, 38-415
This act shall be liberally construed, to the end that its
purposes may be carried out, to wit, that the care,
custody and discipline of a child shall approximate, as
nearly as may be, proper parental care; and in all cases
where the same can be properly done, that a child may
be placed in an approved family home, by legal adoption
or otherwise. And in no case shall any proceedings,
order or judgment of the juvenile court, in cases coming
within the purview of this act, be deemed or held to
import a criminal act on the part of any child but all
proceedings, orders and judgments shall be deemed to
have been taken and done in the exercise of the parental
power of the state. G.S. 1949, 38-415. (Emphasis added).

16. Parental Power Police Power
Orders and judgments shall be deemed to have been taken
and done in the exercise of the parental power of the state.

17. Constitutional Challenges Laid to Rest!
Criminal procedures were
deemed entirely
inappropriate. The
framework for juvenile
court was idealic and the
State did all it could to be a
good parent. Good parents
don’t have to give children
constitutional rights and
neither does the State!

18. McKeiver v. Pennsylvania
1971
The last time the right to jury trial was addressed in the
U.S. Supreme Court was in McKeiver. The Supreme
Court found in a plurality opinion that if it were to grant
jury trial in juvenile proceedings that it would be
essentially disrupting what it termed the “prospect of an
intimate, informal, protective proceeding.” The court
was concerned that it would cause the death of parens
patriae, and so the court ruled that it could not go that
far unless the juvenile system became essentially a
criminal system and at that time (1971) it had not gone
that far. The U.S. Supreme Court has not addressed the
issue, but some states have done so.

19. Kansas After McKeiver
In the early 1980’s the systems were split so that children
charged with crimes could have an attorney and not a GAL,
and the legislature sought to distinguish the approach taken.
Since then have been only a few challenges to get a right to
trial by jury for juveniles, all unsuccessful.
Later, in 1996 the entire concept of parens patriae was entirely
removed from the statute and then in 1996 the Court ruled
that juvenile “Convictions” could be used against an adult and
that was solidified in State v. Hitt in 2002.

20. Kansas Cases
In Re Findlay (1984)
In Re A.C.W. (1999)
In Re L.A. (2001)
Were these cases good law, and had Kansas come full circle?
Was Kansas more punitive than rehabilitative?
The arguments crafted in the L.M. case centered around the
McKeiver case and around the changes made in the Kansas
Juvenile Justice System .

21. Parental Power Police Power
Orders and judgments shall be deemed to have been taken
and done in the exercise of the parental power of the state.

22. Police Power is Police Power
Orders and judgments shall be deemed to be criminal convictions
and can be used against them. When a child is accused he/she is
labeled as a criminal and can face incarceration (Liberty Interests
are certainly at stake).

23. Juvenile Offender Court is a
Criminal Prosecution!
It’s not just a civil proceeding to find a kid to be a juvenile delinquent. . .

24. The Kansas Supreme Court Was
Brave!
Juveniles charged
with crime.
Kansas Supreme Court!
“. . . we are undaunted in our belief
that juveniles are entitled to the right
to a jury trial guaranteed to all
citizens under the Sixth and
Fourteenth Amendments to the
United States Constitution. . . we
conclude that the proceedings under
the KJJC fit within the meaning of the
phrase ‘all prosecutions’ as set forth
in §10 [of the Kansas Constitution],
and juveniles have a right to a jury
trial under the Kansas Constitution.”

25. UNDAUNT
EDundaunted - courageously resolute
especially in the face of danger or
difficulty : not discouraged. Not
discouraged or disheartened;
resolutely courageous.

26. In Re L.M., 186 P.3d 164 (Kan. 2008)

27. Problems With L.M. Case!
• It is BROAD and gives little guidance.
• It has revolutionized the juvenile system and set in
motion an overwhelming task for prosecutors,
judges and defense attorneys.
• May require juvenile courts to be redesigned.
• May make juvenile courts more penal in nature.
• May create backlash with overzealous P-O-ed
prosecutors (more certifications).
• May raise taxes, potentially VERY COSTLY!

28. Good things about L.M. Case
• Juvenile offenders now have additional protections
as a tool.
• May curb prosecutors from overcharging kids.
• Gives children charged with crime more leverage
in working out plea deals.
• Gives children a buffer from “quick to convict”
judges.
• Kids are able to prevent getting the worst of both
worlds.

29. Immediate Effects of L.M.
Has anyone experienced any immediate effects of
the L.M. decision?
http://inrelm.blogspot.com

30. In Re J.R.A., 38 Kan.App.2d 86 (2007)
This is a case about statutory construction. As a result
of the case the legislature has already reacted.
Legislation has been enacted to fix the hole that
allowed the juvenile to get through it. Even though
this is the case it is still a useful case because it
shows how strict the courts are on statutory
construction, especially in juvenile cases.

31. In Re P.L.B.,190 P.3d 274 (2008)
The elements of a knowing,
voluntary, and intelligent plea
are outlined. The Court got
very technical in its analysis
of a plea in a juvenile case
and required a reversal
because the district court did
not follow the requirements
of K.S.A 38-2344.

32. K.S.A. 38-2344
The statute requires that the trial court inform the
juvenile of the following: (1) the nature of the
charge; (2) the presumption of innocence; (3) the
right to a speedy trial; (4) the right to subpoena
witnesses; (5) the right to testify or not to testify,
and (6) the sentencing alternatives the trial court
may impose. Failure to do what is required in K.S.A.
38-2344 basically opens the door for the juvenile to
challenge the validity of the plea.
Failure to follow the statute will require reversal

33. In Re Z.C., 2007 Utah 54 (2007)
This is not a Kansas Case, but it is important to
note because it calls into question the charging
of children under fourteen with statutory rape,
especially when the other child is also subject to
prosecution under the law. The Court articulates
a rarely used doctrine, ridiculous and absurd
results.

34. In Re Z.C., 2007 Utah 54 (2007)
Quoting the U.S. Supreme Court the Utah court
articulated the absurd results doctrine as follows:
The absurd results canon of statutory construction recognizes
that although “the plain language interpretation of a statute
enjoys a robust presumption in its favor, it is also true that [a
legislative body] cannot, in every instance, be counted on to
have said what it meant or to have meant what it said." FBI v.
Abramson, 456 U.S. 615, 638 (1982) (O'Connor, J., dissenting).
The Court, even though concise in its reasoning,
narrowly confined the ruling to only apply to situations
where no true victim or perpetrator is identifiable.

35. More Constitutional Issues in
Juvenile Court
Paul Shipp

36. The Most Notable Rights!
The juvenile-defendant has the right. . .
• To a trial by jury in criminal prosecutions
• To know the nature of the charge
• To the presumption of innocence, State’s burden (BRD)
• The right to a speedy public trial (without unnecessary
delay)
• The right to subpoena witnesses (to defend)
• The right to confront his accuser(s)
• The right against self incrimination (Miranda, 5th
Amend)
• The right to competent counsel
• The right to be left alone and not subject to
unreasonable searches and seizures (4th Amendment)

37. Preliminary Hearings &
Probable Cause
The interesting question in juvenile court is why it is okay for a
prosecutor to just file a complaint in juvenile court, without any
judicial oversight. The fourth amendment requires that, “no
warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. ” In spite of
the warrant requirement the Juvenile Court procedure requires
no judicial review before the case can proceed. This is an
interesting question that should be raised. It is possible that it
has already been raised. . .

38. Right to Bond
Does a juvenile have the right to be presumed
to be innocent until proven guilty? In juvenile
courts it is not unusual to have a younger child
involved with young adults, 18 and over, where
the adult is able to bond out of jail and be free,
where the juvenile is detained, or placed into
the immediate custody of the Juvenile Justice
Authority for placement outside of the home.
Does this make any sense?

40. 5th
Amendment, Miranda Rights

41. Special Rules Regarding
Interrogating Children
K.S.A. 38-2333 is effective when a child is less than 14
years of age. No admission or confession resulting
from interrogation while in custody or under arrest
may be admitted into evidence unless the confession
or admission was made following a consultation
between the juvenile’s parent or attorney as to
whether the juvenile will waive the right to an
attorney and the right against self-incrimination. It
shall be the duty of the facility where the juvenile
has been delivered to make a reasonable effort to
contact the parent immediately upon the juvenile’s
arrival.

42. Cop’s actual statements
You don’t get to decide if you talk to me. Your mom does
is the gist of it, and this is exactly what the cop said:
And before I ask you specific questions, Okay, let me tell
you a thing or two, you know your Miranda rights, I take
it, Okay,. . . I am going to go ahead and review the same
thing, your moms already told me I can talk to you, I just
want to go ahead and let you know. You have the right
to remain silent, anything you say can an will be used
against you you have the right to an attorney, and ya'
have the right to have an attorney present with you an
you also have the right to stop any questioning , Okay,
alright, now…

43. More Special Rules Regarding
Interrogating Children
“. . . when, as here, a mere child – an easy victim of
the law – is before us, special care in scrutinizing
the record must be used. Age 15 is a tender and
difficult age for a boy of any race. He cannot be
judged by the more exacting standards of
maturity. That which would leave a man cold and
unimpressed can overawe and overwhelm a lad
in his early teens.”
The U.S. Supreme Court

44. Donesay/Young Filter
The courts in Kansas require the following factors are to
be considered when determining whether the
confession of a juvenile is voluntary:
(1)the age of the minor,
(2)the length of the questioning,
(3)the minor’s education,
(4)the minor’s prior experience with the police,
(5)the minor’s mental state.
The state must show that under the totality of the
circumstances, the juvenile ’s confession/admissions
were voluntary.

45. 4th
Amendment
The best case to read on this issue is In Re L.A., 270
Kan. 879 ; 21 P.3d 952 (2001). The last section of the
case that deals with the juvenile ’ s right to jury trial
is now bad law, but the rest of the case is full of
excellent analysis. There are so many treatises out
there on the Fourth Amendment that an analysis of
those issues is not going to be attempted here. The
most important issue here is whether the attorneys
representing children are actually analyzing cases
and apply this most important constitutional
principle.

46. Use of Juvenile Adjudications to
Enhance Adult Sentences
Use of Juvenile Adjudications to enhance adult
sentences. The Kansas Supreme Court has held in the
past that juvenile adjudications can now be used to
enhance sentences in adult criminal cases, even
though such adjudications were obtained without the
full panoply of due process rights provided to adults in
criminal cases. K.S.A. 21-4710; State v. LaMunyon, 259
Kan. 54, 911 P.2d 44 (1996). In State v. Hitt , 273 Kan.
224, 42 P.3d 732 (2002) the Kansas Supreme Court
seemingly solidified the constitutionality of allowing
this to occur, but now that we have L.M. should the
court revisit the question?

47. The End