dissenting:
Gone are the days when courts might lawfully deny minors due process “for their own good.”1 In 1967, the United States Supreme Court held that the due process clause of the Fourteenth Amendment requires adjudicatory hearings for juveniles to respect “the essentials of due process and fair treatment.”2 True, the Supreme Court has since held that due process does not require that factual issues be decided by a jury in juvenile proceedings.3 Still, “the essentials of due process and fair treatment” indubitably are denied when the trier of facts does not weigh the evidence in the light of applicable law. That is the core of cogent arguments the Public Defender has tendered on appellant’s behalf, in thoughtful and well researched briefs.
Instead of meeting the Public Defender’s strongest arguments, the majority style the Public Defender’s first and weakest legal point as his “principal assignment of error” — which it does not seem to be at all, although orderly presentation of appellant’s position was attained by stating it first.4 However, by labeling it the “principal assignment,” and satisfactorily *579disposing of it, the majority subtly stigmatize the Public Defender’s subsequent points, making summary treatment of them seem acceptable and inevitable. I believe those other points are significant, that the authorities proffered to support them are substantial, and that they must either be met in some more satisfactory manner than the majority has met them, or we must remand for a new adjudicatory hearing.
For example, the Public Defender notes that the referee apparently believed appellant was per se guilty of manslaughter solely because appellant had exceeded the posted speed limit. Hence, the Public Defender contends the referee decided appellant’s guilt on an incorrect legal standard, rather than considering whether, in view of all facts, appellant had been proved guilty of “criminal negligence,” NRS 193.190, beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970). In substance, the majority’s “answer” is that the evidence was sufficient to justify a finding of criminal negligence, if one had been made; but that, obviously, is no answer at all, particularly since the majority allude to evidence the referee expressly stated he would not consider.
Again, the Public Defender argues that the referee was not merely unaware of the ultimate issues (whether appellant was guilty of criminal negligence, and whether such criminal negligence was a proximate cause of the ensuing death), but also refused to consider the deceased’s conduct as it related to these issues. The majority’s response is that contributory negligence of the deceased is not a defense to a criminal action, which of course is beside the point. The Public Defender’s point is that the deceased’s conduct bore on whether appellant’s fault was so gross as to constitute criminal negligence, and whether certain aspects of appellant’s conduct had any causal nexus with the death at all.5
As the Public Defender points out, it does not appear that *580either the referee or judge weighed the relevant evidence in the light of applicable law. Purely from an administrative standpoint, I feel as I am sure my brethren do. We have been constrained to remand this case before; it would be fortunate were we not constrained to do so again. However, an adult charged with manslaughter is entitled to a jury properly instructed on the law, and a minor clearly must be afforded equivalent protection. Thus, this matter should be remanded for a rehearing, at which the court would be instructed to determine whether criminal negligence on appellant’s part proximately caused the death in question, giving due consideration to the actions of the deceased.
Nonetheless, many still believe justice is served by denying minors due process, whenever possible. See: L. Forer, No One Will Lissen (1970).
In re Gault, 387 U.S. 1, 30 (1967).
McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
As stated by the Public Defender, the issues tendered for our consideration are:
“1. Because NRS 62.090(4) contained mandatory language, must a rehearing de novo of a juvenile matter be granted automatically upon application?
“2. If a hearing de novo of a juvenile matter is not automatic upon application, was it nevertheless error to deny a rehearing where the *579referee as trier of fact applied erroneous legal standards to the evidence before him?
“3. Must the contributory negligence of the decedent be considered in determining whether an operator of an automobile is guilty of involuntary manslaughter?
“4. May an adjudication of delinquency based upon the commission of involuntary manslaughter be upheld where there has been no finding of criminal negligence?”
The Public Defender’s Opening Brief states the issue as follows:
“It has been established beyond question that in this case Lonnie Anthony Reo, the decedent, was negligent. First, he and his companion were wearing long, dark coats (f. 009). Indeed, Lonnie Anthony Reo was wearing a coat of length and color familiar to anyone who has ever served in the United States Army (f. 009). This apparel was worn *580in spite of the fact that it was dangerous to be so attired in close proximity to a highway after dark. See Smith v. State, 65 So.2d 303 (Fla. 1953). Second, he was walking with the flow of traffic along East Charleston Boulevard in an area without sidewalks. This latter action was a violation of both NRS 484.181(2) now NRS 484.331(2) and Clark County Code Sect. 14.36.060. His actions were both a misdemeanor (Clark County Code Sec. 14.64.080 and NRS 484.735 (now NRS 484.251) as well as negligence per se (Ryan v. Manhattan Big Four Mining Co., 38 Nev. 92, 145 P. 907 (1914).
“This contributory negligence of the decedent, although not a complete defense to a charge of involuntary manslaughter occurring through the operation of an automobile, is entitled to serious consideration in resolving the questions whether a defendant’s negligence is the proximate cause of death and indeed whether defendant’s conduct can be called negligence at all. State v. Sisneros, supra; State v. Bowser, 124 Kan. 556, 261 P. 846 (1927); Driggs v. State, 40 Ohio App. 130, 178 N.E. 15 (1931) (Petition in error dismissed 1230 his St. 686, 177 N.E. 633); State v. Oakley, 176 N. Car. 755, 97 S.E. 616 (1918); State v. Phelps, 242 N. Car. 540, 89 S.E.2d 132 (1955); People v. Campbell, 237 Mich. 424, 212 N.W. 97 (1927); Prezzi v. U.S., 62 at 2d 196 (D.C. 1948).”