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It isn't often that you see a state supreme court declare that they don't have to follow U.S. Supreme Court precedent.

In 1971, the U.S. Supreme Court found that juveniles were not entitled to a jury trial. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976 (1971). Judge Rosen in The Matter of L.M. distinguishes McKeiver and the previous Kansas Supreme Court ruling (Findlay) by noting the similarities juvenile justice now has with the the adult justice system. He then writes:

These changes to the juvenile justice system have eroded the benevolent parens patriae character that distinguished it from the adult criminal system. The United States Supreme Court relied on the juvenile justice system's characteristics of fairness, concern, sympathy, and paternal attention in concluding that juveniles were not entitled to a jury trial. McKeiver, 403 U.S. at 550. Likewise, this court relied on that parens patriae character in reaching its decision in Findlay. However, because the juvenile justice system is now patterned after the adult criminal system, we conclude that the changes have superseded the McKeiver and Findlay Courts' reasoning and those decisions are no longer binding precedent for us to follow. Based on our conclusion that the Kansas juvenile justice system has become more akin to an adult criminal prosecution, we hold that juveniles have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments. As a result, K.S.A. 2006 Supp. 38-2344(d), which provides that a juvenile who pleads not guilty is entitled to a "trial to the court," and K.S.A. 2006 Supp. 38-2357, which gives the district court discretion in determining whether a juvenile should be granted a jury trial, are unconstitutional.

I'm going to quote that one line again:

It is important to note that McKeiver was a plurality opinion, so it isn't wholly inapropriate in this instance for a state supreme court to claim that U.S. Supreme Court precedent is no longer precedent, but still it is a pretty bold given the disagreements the other courts have with this logic. Judge Rosen points them out:

We are also mindful that many of the state courts that have addressed this issue in one form or another have declined to extend the constitutional right to a jury trial to juveniles. See, e.g., David G. v. Pollard ex rel. County of Pima, 207 Ariz. 308, 314, 86 P.3d 364 (2004) (concluding trial court erred when it allowed a jury trial for a juvenile charged with traffic offenses because forcing a juvenile to be tried by a jury did not promote informality and flexibility of juvenile system and subjected juvenile to very stigma legislature sought to prevent); A.C., IV v. People, 16 P.3d 240, 244-45 (Colo. 2001) (upholding statute that allowed trial court discretion in determining whether to allow a jury trial); In re J.T., 290 A.2d 821(D.C.), cert. denied 409 U.S. 986, (1972) (upholding statute that required trial court to hear and adjudicate juvenile cases without a jury); McMullen v. Geiger, 184 Neb. 581, 584, 169 N.W.2d 431 (1969) (holding juveniles do not have right to jury trial because it is a civil proceeding under State's parens patriae authority, four justices dissented); R.V. Cory, 353 N.Y.S.2d 783, 44 App. Div. 2d 599 (1974) (holding a 15-year-old juvenile sentenced to an adult facility is not entitled to jury trial; dissent reasoned State is required to give child same constitutional rights given to criminals if it is going to treat child like a criminal); In re R.Y., 189 N.W.2d 644, 651-53, 655 (N.D. 1971) (upholding statute that required juvenile trials to be heard by the court; concurring justice acknowledged that if juvenile code became only a punitive tool, then a jury trial might be justified under state constitution); State v. Hezzie R., 219 Wis. 2d 848, 887, 889-90, 919, 580 N.W.2d 660 (1998) (holding juveniles do not have constitutional right to a jury trial but striking down statute that allowed juveniles to receive adult sentence without a jury trial; three justices dissented, reasoning juveniles should be entitled to a jury trial under all cases because changes to juvenile justice code treated juveniles like criminals).

I don't think you can be the state Attorney General and not apply for certiorari. The logic of the opinion MUST be either affirmed or denied by the U.S. Supreme Court. I can't imagine that the U.S. Supreme Court would not like an opportunity to address the issue of whether high state courts can ignore their precedent. However, the U.S. Supreme Court is probably not to keen on trying to determine if Kansas alone has changed its system so radically that juveniles now should have a right to a jury trial.

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