In re L.M.

The opinion of the court was delivered by

Rosen, J.:

L.M. seeks review of the Court of Appeals decision affirming his juvenile adjudication for aggravated sexual battery and being a minor in possession of alcohol. L.M. claims that he should have received a jury trial and argues that sweeping changes to juvenile justice procedures in Kansas since 1984 merit renewed scrutiny under applicable constitutional protections.

Sixteen-year-old L.M. was charged and prosecuted as a juvenile offender on one count of aggravated sexual battery in violation of K.S.A. 21-3518 and one count of minor in possession of alcohol in violation of K.S.A. 2005 Supp. 41-727. The facts leading up to these charges involve a sexually suggestive confrontation between L.M. and a neighbor who was walking home. Further discussion of the facts is not relevant to the issue on appeal and will not be discussed herein. L.M. requested a jury trial, and the district court denied his request. After a trial to the bench, the district court found L.M. guilty as charged. The district court sentenced L.M. as a Serious Offender I to a term of 18 months in a juvenile correctional facility but stayed his sentence and ordered L.M. to be placed on probation until he was 20 years old. In addition, the district court ordered L.M. to complete sex offender treatment and register as a sex offender in accordance with K.S.A. 2005 Supp. 22-4906.

L.M. appealed to the Court of Appeals, claiming that he had a constitutional right to a jury trial, drat his statements to police should have been suppressed, and that the evidence was insufficient to support his convictions. The Court of Appeals affirmed the district court. See In re L.M., No. 96,197, unpublished opinion filed December 22, 2006. L.M. filed a petition for review with this court on the sole issue of whether he had a constitutional right to a jury trial in a juvenile offender proceeding. We granted L.M.’s petition for review.

L.M. is challenging the constitutionality of K.S.A. 2006 Supp. 38-2344(d), which provides that a juvenile who pleads not guilty is entided to a “trial to the court,” and K.S.A. 2006 Supp. 38-2357, and which gives the district court complete discretion in determining whether a juvenile should be granted a jury trial. The constitutionality of a statute is a question of law subject to unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007).

“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” State v. Chamberlain, 280 Kan. 241, 246, 120 P.3d 319 (2005).

United States Constitution

L.M.’s first argument relies on the Sixth Amendment to the United States Constitution, which provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .”

L.M. further relies on the United States Constitution’s Fourteenth Amendment Due Process Clause, which provides in relevant part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law . . . .”

Kansas has previously resolved this issue against L.M.’s position. Twenty-four years ago, under the statutes then controlling the disposition of juvenile offender cases, this court held that juveniles do not have a constitutional right to a jury trial under either the federal or state constitutions. Findlay v. State, 235 Kan. 462, 463-64, 681 P.2d 20 (1984). Acknowledging that the Sixth Amendment applies only to criminal prosecutions, the Findlay court concluded that juvenile adjudications then were not criminal prosecutions based on K.S.A. 1982 Supp. 38-1601, which provided:

“ ‘K.S. A. 1982 Supp. 38-1601 through 38-1685 shall be known and may be cited as the Kansas juvenile offenders code and shall be liberally construed to the end that each juvenile coming within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the juvenile’s own home, as will best serve the juvenile’s rehabilitation and the protection of society. In no case shall any order, judgment or decree of the district court, in 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, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.’ (Emphasis supplied.)” 235 Kan. at 463.

The Findlay court also adopted the United States Supreme Court’s reasoning in McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647,91 S. Ct. 1976 (1971), where a plurality of the Court held that juveniles are not entitled to a jury trial under the Sixth and Fourteenth Amendments to the Constitution.

In McKeiver, the United States Supreme Court addressed the constitutionality of the Pennsylvania and North Carolina juvenile justice systems, neither of which afforded juveniles the right to a jury trial. Although the resulting plurality opinion held that juveniles are not entitled to a jury trial under the federal Constitution, the justices could not agree on the reasoning to support that holding. Four of the justices supported their decision with the following 13 policy considerations and assumptions or speculations about the impact of jury trials on juvenile proceedings:

(1) The Court had previously refrained from flatly holding that all constitutional rights assured to adults accused of crimes were imposed on state juvenile proceedings;

(2) Imposing jury trials might remake juvenile proceedings into fully adversarial proceedings, thereby putting an end to the intimate, informal proceedings envisioned by the creators of the juvenile justice system;

(3) A governmental task force that had studied the juvenile justice system did not make any recommendation regarding jury trials as a means of improving the deficiencies and disappointments in the juvenile system;

(4) As noted in dictum in Duncan v. Louisiana, 391 U.S. 145, 149 n.14, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), a jury trial is not a necessary part of every fair and equitable criminal process;

(5) The imposition of a jury trial would not strengthen the fact-finding process and would eliminate the juvenile system’s ability to function in a unique way, placing the juvenile “squarely in the routine of the criminal process;”

(6) The Court was reluctant to preclude the States from experimenting with different ways of handling juvenile problems;

(7) The Court refrained from concluding that the abuses in the system were of constitutional dimension;

(8) Nothing prevented the juvenile court judge from using an advisoiy jury;

(9) Twenty-eight States and the District of Columbia denied juveniles the right to a jury trial, while 10 States provided a juiy trial under certain circumstances;

(10) A great majority of States had previously concluded that In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and Duncan did not require jury trials for juveniles;

(11) The Uniform Juvenile Court Act stopped short of proposing a jury trial;

(12) Injecting a juiy trial into juvenile proceedings would bring “the traditional delay, the formality, and the clamor of the adversaiy system and, possibly, the public trial”; and

(13) The possibility of prejudgment by a judge who has had prior access to the juvenile, the juvenile’s record, and the juvenile’s social file would ignore every aspect of fairness, concern, sympathy, and paternal attention contemplated by the juvenile system. McKeiver, 403 U.S. at 545-50.

Two concurring justices relied on other reasoning. Justice Harlan concurred with the result because he did not believe that the Sixth Amendment or the right to due process required the states to provide criminal jury trials for anyone. McKeiver, 403 U.S. at 557 (Harlan, J., concurring). Justice Brennan also concurred with the result but relied on the concept of fundamental fairness. According to Justice Brennan, the State did not have to provide juiy trials for juveniles as long as some other aspect of the process adequately protected tire juvenile’s Sixth Amendment interests by preventing governmental oppression. Justice Brennan concluded that the Pennsylvania system was adequate because it allowed public trials, thereby “exposing improper judicial behavior to public view, and obtaining, if necessary, executive redress through the medium of public indignation.” 403 U.S. at 555 (Brennan, J., concurring). Under this rubric, Justice Brennan concluded that the North Carolina system was not constitutionally sound because it did not allow public trials. 403 U.S. at 556-57 (Brennan, J., concurring).

Justices Douglas, Black, and Marshall dissented, stating that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” McKeiver, 403 U.S. at 559 (quoting In re Gault, 387 U.S. at 13). Noting that the “Sixth Amendment . . . speaks of denial of rights to ‘any person,’ not denial of rights to ‘any adult person,’ ” the dissenting justices discerned no difference between allowing juveniles the right to a jury trial and the previously granted rights to notice, counsel, protection against self-incrimination, confrontation, and conviction under the beyond a reasonable doubt standard. 403 U.S. at 560-61 (Douglas, J., dissenting). The dissenting justices looked behind the facade of the delinquency charge to the underlying criminal statute and concluded that juveniles who are prosecuted for a criminal act involving a potential loss of liberty are entitled to the same protections as adults accused of a crime. 403 U.S. at 560-61.

L.M. recognizes the import of Findlay and McKeiver but asks us to overturn Findlay. L.M. raises three arguments to support his request. First, L.M. claims that the changes in the Revised Kansas Juvenile Justice Code (KJJC), K.S.A. 2006 Supp. 38-2301 et seq., have eroded the child-cognizant, paternal, and rehabilitative purposes of the juvenile offender process, thereby requiring us to recognize a juvenile’s right to a juiy trial under the federal Constitution. Second, L.M. argues that juveniles are entitled to a jury trial under the Kansas Constitution. Third, L.M. asserts that regardless of whether all juveniles are constitutionally entitled to a jury, he should have received one because he ran the risk of having to register as a sex offender.

We begin our analysis by noting that the Kansas Legislature has significantly changed the language of the Kansas Juvenile Offender Code (KJOC) since the Findlay court decided this issue 24 years ago. The juvenile code is now called the Revised Kansas Juvenile Justice Code. L.M. asserts that these changes to the code negated the rehabilitative purpose set forth in the KJOC. According to L.M., the negating of the rehabilitative purpose is evidenced by the replacement of nonpunitive terminology with criminal terminology similar to the adult criminal code, the alignment of the KJJC sentencing provisions with the adult sentencing guidelines, and the removal of the protections that the McKeiver Court relied on to distinguish juvenile systems from the adult criminal systems.

One of the key changes in the KJJC is reflected in K.S.A. 2006 Supp. 38-2301, which sets forth the purpose for the KJJC, providing:

“This act shall be known and may be cited as the revised Kansas juvenile justice code. The primary goals of the juvenile justice code are to promote public safety, hold juvenile offenders accountable for their behavior and improve their ability to live more productively and responsibly in the community. To accomplish these goals, juvenile justice policies developed pursuant to the revised Kansas juvenile justice code shall be designed to: (a) Protect public safety; (b) recognize that the ultimate solutions to juvenile crime lie in the strengthening of families and educational institutions, the involvement of the community and the implementation of effective prevention and early intervention programs; (c) be community based to the greatest extent possible; (d) be family centered when appropriate; (e) facilitate efficient and effective cooperation, coordination and collaboration among agencies of the local, state and federal government; (f) be outcome based, allowing for the effective and accurate assessment of program performance; (g) be cost-effectively implemented and administered to utilize resources wisely; (h) encourage the recruitment and retention of well-qualified, highly trained professionals to staff all components of the system; (i) appropriately reflect community norms and public priorities; and (j) encourage public and private partnerships to address community risk factors.” (Emphasis added.)

In 1982, the KJOC was focused on rehabilitation and the State’s parental role in providing guidance, control, and discipline. See K.S.A. 1982 Supp. 38-1601. However, under the KJJC, the focus has shifted to protecting the public, holding juveniles accountable for their behavior and choices, and making juveniles more productive and responsible members of society. See K.S.A. 2006 Supp. 38-2301. These purposes are more aligned with the legislative intent for the adult sentencing statutes, which include 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, circumstances, needs, and potentialities in determining their sentences. See K.S.A. 21-4601.

In addition to being more aligned with the purpose of the criminal sentencing statutes, the KJJC also incorporates language similar to that found in the Kansas Criminal Code, see K.S.A. 21-3101 et seq., and the Kansas Code of Criminal Procedure, see K.S.A. 22-2101 et seq. Under the KJOC, juveniles were required to admit or deny the allegations against them or plead nolo contendere. K.S.A. 1982 Supp. 38-1633(b). Under the KJJC, a juvenile is required to plead guilty, not guilty, or nolo contendere like adults charged with a crime. See K.S.A. 2006 Supp. 22-3208; K.S.A. 38-2344(b). Although both the KJOC and the KJJC refer to an adjudication rather than a conviction, a “dispositional proceeding” under the KJOC is now referred to as a “sentencing proceeding” in the KJJC. See K.S.A. 1982 Supp. 38-1605; K.S.A. 2006 Supp. 38-2305(c). The “State youth center” referred to in the KJOC, K.S.A. 1982 Supp. 38-1602(g), is now called a “Juvenile correctional facility,” K.S.A. 2006 Supp. 38-2302(j), which is more akin to an adult “correctional institution,” K.S.A. 21-4602(e). Moreover, the KJJC emulates the language of the Kansas Criminal Code when it refers to the term of commitment to a juvenile correctional facility as a “term of incarceration.” K.S.A. 21-4603d; K.S.A. 21-4608; K.S.A. 2006 Supp. 38-2374; K.S.A. 2006 Supp. 38-2376. This conceptualization of juvenile offenders stresses the similarities between child and adult offenders far more than it does their differences.

The legislature also emulated the structure of the Kansas Sentencing Guidelines when it established a sentencing matrix for juveniles based on the level of the offense committed and, in some cases, the juvenile’s history of juvenile adjudications. See K.S.A. 21-4701 et seq.; K.S.A. 2006 Supp. 38-2369. For example, a juvenile offender found guilty of committing an off-grid felony may be sentenced to “a juvenile correctional facility for a minimum term of 60 months and up to a maximum term of the offender reaching the age of 22 years, six months.” K.S.A. 2006 Supp. 38-2369(a)(l). A juvenile offender found guilty of committing a severity level 7, 8, 9, or 10 person felony with one prior felony adjudication may be sentenced to “a juvenile correctional facility for a minimum term of nine months and up to a maximum term of 18 months.” K.S.A. 2006 Supp. 38-2369(a)(2)(B).

Like the adult sentencing guidelines, the KJJC allows the sentencing judge to depart from the juvenile placement matrix upon a motion by the State or the sentencing judge. K.S.A. 21-4718; K.S.A. 2006 Supp. 38-2371. The KJJC sentencing judge may consider the aggravating factors from K.S.A. 21-4716(c)(2) or K.S.A. 21-4717(a). K.S.A. 2006 Supp. 38-2371(a)(3). If the sentencing judge departs from the presumptive sentence, he or she must state on the record the substantial and compelling reasons for the departure just as if he or she were sentencing an adult offender. See K.S.A. 21-4716(a); K.S.A. 2006 Supp. 38-2371(d). Although any juvenile sentence within the presumptive sentencing range is not subject to appeal, juvenile departure sentences, like adult departure sentences, may be appealed. K.S.A. 2006 Supp. 38-2380(b)(2)(A); (b)(3); (b)(4).

The KJJC is also similar to the adult sentencing guidelines in imposing a term of after-care on any juvenile sentenced in accordance with the juvenile placement matrix. See K.S.A. 21-4703(p); K.S.A. 21-4704(e)(2); K.S.A. 2006 Supp. 38-2369. Another similarity between the KJJC and the adult sentencing guidelines is the juvenile offender s opportunity to earn good time credits to reduce his or her term of incarceration. K.S.A. 21-4722; K.S.A. 2006 Supp. 38-2370.

In addition to reflecting the provisions of the sentencing guidelines, the KJJC also establishes sentencing options that are similar to those available for adult offenders. Both adults and juveniles may be sentenced to probation; a community-based program; house arrest; a short-term behavior-modification program like a sanctions house or conservation camp; placement in an out-of-home facility; or incarceration in a correctional facility. K.S.A. 2006 Supp. 38-2302; K.S.A. 2006 Supp. 38-2361(a)(l), (2), (9), (10), (11), (12); K.S.A. 21-4603d(a)(l), (3), (4), (5), (6); K.S.A. 21-4610(c)(9). The district court also has authority to order both adults and juveniles to attend counseling; drug and alcohol evaluations; mediation; or educational programs. K.S.A. 2006 Supp. 38-2361(a)(4); K.S.A. 21-4603d(a)(7), (c); K.S.A. 21-4610(c)(9). In addition, the district court may require both adults and juveniles to perform charitable or community service; pay restitution; or pay a fine. K.S.A. 2006 Supp. 38-2361(a)(6), (7), (8); K.S.A. 21-4603d(a)(2), (b); K.S.A. 21-4610(c)(10). Sentencing of juveniles has become much more congruent with the adult model.

Besides amending the 1982 version of the KJOC to reflect the purpose and provisions included in the adult criminal code, the legislature has removed some of the protective provisions that made the juvenile system more child-cognizant and confidential, a key consideration in the McKeiver plurality decision. In 1982, juvenile proceedings were confidential. The official court file and all police records of any juvenile under the age of 16 were not open to the public. K.S.A. 1982 Supp. 38-1607; K.S.A. 1982 Supp. 38-1608. Likewise, any hearing involving a juvenile under the age of 16 was confidential and the court could exclude anyone except the juvenile; his or her parents; the attorneys of any interested parties; officers of the court; and any testifying witness. K.S.A. 1982 Supp. 38-1652.

However, under the KJJC, the official file must be open to the public unless a judge orders it to be closed for juveniles under the age of 14 based on finding that it is in the best interests of the juvenile. K.S.A. 2006 Supp. 38-2309(b). Similarly, law enforcement records and municipal court records for any juvenile age 14 and over are subject to the same disclosure restrictions as the records for adults. K.S.A. 2006 Supp. 38-2310(c). Only juveniles under the age of 14 may have their law enforcement and municipal records kept confidential. K.S.A. 2006 Supp. 38-2310(a). The legislature has also eliminated the presumption of confidentiality for hearings, opening all hearings to the public unless the juvenile is under the age of 16 and the judge concludes that a public hearing would not be in the juvenile’s best interests. K.S.A. 2006 Supp. 38-2353.

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 juiy 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.

In reaching this conclusion, we are mindful of decisions in other jurisdictions rejecting the argument that changes to the juvenile justice system have altered its parens patriae character. See Valdez v. State, 33 Ark. App. 94, 801 S.W.2d 659 (1991); In re Myresheia W., 61 Cal. App. 4th 734, 72 Cal. Rptr. 2d 65 (1998); In re L.C., 273 Ga. 886, 548 S.E.2d 335 (2001); State, ex rel. D.J., 817 So. 2d 26 (La. 2002) (dissenting justice concluded changes to system required a jury trial); State v. Gleason, 404 A.2d 573 (Me. 1979) (concluding new juvenile code retained beneficent and rehabilitative purposes of prior code); State v. Lawley, 91 Wash. 2d 654, 591 P.2d 772 (1979) (three dissenting justices concluded changes in system shifted focus from offender to offense and so policy arguments in McKeiver were not controlling); State v. Schaaf, 109 Wash. 2d 1, 10, 12-13, 743 P.2d 240 (1987) (noting rehabilitation was still purpose of juvenile code and differences continued to distinguish juvenile proceedings, which were not criminal proceedings, with one justice dissenting because juvenile code was punitive like criminal system).

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 juiy 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, 44 App. Div. 2d 599, 353 N.Y.S.2d 783 (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 juiy 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 juiy trial under all cases because changes to juvenile justice code treated juveniles like criminals).

While there is wide variability in the juvenile offender laws throughout the countiy, it nevertheless seems apparent to us that the KJJC, in its tilt towards applying adult standards of criminal procedure and sentencing, removed the paternalistic protections previously accorded juveniles while continuing to deny those juveniles the constitutional right to a juiy trial. Although we do not find total support from the courts in some of our sister states, 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.

The State relies on our more recent decision in In re L.A. 270 Kan. 879, 21 P.3d 952 (2001), to support its argument that juveniles are not entitled to a jury trial. However, we do not find L.A. persuasive. The L.A. court relied on Findlay without analyzing the distinctions between the KJOC and the KJJC. 270 Kan. at 895. As a result, it did not address the issue presented in this case.

Kansas Constitution

In addition to claiming a federal constitutional right to a jury trial, L.M. asserts that he has a right to a jury trial under the Kansas Constitution. L.M. relies on the Kansas Constitution Bill of Rights, §§ 1, 5, and 10, which provide:

§ 1. “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

§ 5. “The right of trial by jury shall be inviolate.”

§10. “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. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.” (Emphasis added.)

The plain language of §10 extends the right to a jury trial to “all prosecutions.” This court has previously interpreted the phrase “all prosecutions” to “mean all criminal prosecutions for violations of the laws of the state.” State, ex rel. Mayer v. Pinkerton, 185 Kan. 68, 69, 340 P.2d 393 (1959) (denying a juiy trial in a bastardy proceeding). In 1883, this court addressed the question of whether §10 applied to a charge of maintaining a nuisance, i.e., a hog pen. In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 523 (1883). In concluding that the defendant was entitled to a trial by jury, this court stated:

“So long, therefore, as the fundamental law contains the guaranty which it does, I think no party can be subjected to a prosecution for an act of a criminal nature, whether that prosecution be brought by the state directly or any corporation created by the state, without in some way and before some tribunal being secured an opportunity of having the truth of that charge inquired into by an impartial jury of the district.

“A distinction should be noticed here. A prosecution which involves nothing of a criminal nature, as for instance, where one is charged with acting as an auctioneer, without a license, in violation of a city ordinance, (such an ordinance being a mere municipal regulation,) is not a criminal offense in the true legal sense of the term. As to such proceedings, the constitutional guaranty may not be applicable; but where the charge is of an act like the one at bar, criminal at common law, criminal in its nature, and an offense against the public, the constitutional guaranty is applicable and cannot be ignored or disregarded.” 30 Kan. at 763.

The KJJC repeatedly refers to its proceedings as a prosecution. See K.S.A. 2006 Supp. 38-2303(c), (d); K.S.A. 2006 Supp. 38-2304(e)(2); K.S.A. 2006 Supp. 38-2346(a), (b)(1); K.S.A. 2006 Supp. 38-2350; K.S.A. 2006 Supp. 38-2381. In addition, proceedings under the KJJC are based on allegations that juveniles have violated the criminal laws of this State. Because the KJJC has lost the parens patriae character of the former KJOC and has transformed into a system for prosecuting juveniles charged with committing crimes, we conclude that the proceedings under the KJJC fit within the meaning of the phrase “all prosecutions” as set forth in §10, and juveniles have a right to a jury trial under the Kansas Constitution. Consequently, K.S.A. 2006 Supp. 38-2344(d) and K.S.A. 2006 Supp. 38-2357 are also unconstitutional under the Kansas Constitution.

As a third argument, L.M. asserts that even if all juveniles are not entitled to a jury trial, he should have received a jury trial because he was subject to registering as a sex offender, an adult sanction. Given our decision that juveniles have a right to a juiy trial under the Sixth and Fourteenth Amendments to the federal Constitution and the Kansas Constitution, we decline to analyze this argument.

The district court and the Court of Appeals acted in accordance with our prior precedent in Findlay. However, we agree with L.M. that Findlay is no longer applicable because of the legislative overhaul to the juvenile justice code. The right to a jury trial in juvenile offender proceedings is a new rule of procedure; it does not operate retroactively. It does not create a new class of convicted persons, but merely raises “ ‘the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.’ ” Drach v. Bruce, 281 Kan. 1058, 1073, 136 P.3d 390 (2006) cert. denied 549 U.S. 1278 (2007) (quoting Schriro v. Summerlin, 542 U.S. 348, 352, 159 L. Ed. 2d 442, 124 S. Ct. 2519 [2004]). This right will apply only to cases pending on direct review or not yet final on the date of filing of this opinion. See State v. Francis, 282 Kan. 120, 126, 145 P.3d 48 (2006). Because L.M. was tried without a jury, his adjudication is reversed and this matter is remanded to the district court for a new trial before a jury.

Reversed.

Davis and Johnson, JJ., not participating. Greene, J., and Larson, S.J., assigned.