(dissenting).
This case clearly presents an equal protection problem. A juvenile — who is not suitable for treatment within the juvenile justice system — should not be denied the right to a jury trial in the criminal system by the prosecutor’s refusal to make a reference motion. The contrary would seem more logical and constitutional. I therefore respectfully dissent.
A novel situation arises in this case in which the juvenile is requesting to be tried as an adult and the prosecutor is resisting reference for criminal prosecution. The far more common case reverses these positions. See, e.g., In re Welfare of I.Q.S., 309 Minn. 78, 244 N.W.2d 30 (1976). Because of the novelty of this role reversal, this situation does not fit comfortably within either Minn.Stat. § 260.125 (1986) or Minn.R.Juv.Ct. 32.01.
As the majority notes, Minn.Stat. § 260.-125 “does not solely limit the filing of the [reference] petition to the prosecutor.” That statute, however, does appear to contemplate the prosecutor as the moving party. This is no more than a reflection of the normal situation in which the prosecutor is seeking to try the child as an adult and the child is attempting to retain the protections provided by the juvenile system. Similarly, Rule 32.01 provides that “[proceedings to refer a delinquency matter pursuant to Minn.Stat. 260.125 may be initiated only upon motion of the county attorney after a delinquency petition has been filed.” This rule was a change from the former practice under which either the court or the prosecuting attorney could move for reference. The change was made to retain the court’s “perceived and actual” neutrality; it was not intended to infringe the juvenile’s right to demand a jury trial within the criminal system if that juvenile is not suitable for treatment within the juvenile system. See generally 12 J. Sonsteng and R. Scott, Minnesota Practice, Juvenile Law and Practice R. 32.01 (1985). When this court stated that “[ajlthough the entire juvenile system involves the waiver of certain constitutional rights in favor of the protection, programs and special features afforded juveniles, any child not wishing to avail himself of this treatment could certainly demand his constitutional right to be, for example, tried by a jury,” In re Welfare ofl.Q.S., 309 Minn, at 85, 244 N.W.2d at 37 (emphasis added), we meant just that — that a juvenile may be able to elect to be tried as a criminal with all the constitutional rights afforded an adult. I would hold that when — as here — a juvenile who requests to be tried as an. adult is alleged to have violated a state or local law or ordinance after becoming 14 years of age, the juve*843nile court may enter an order referring the alleged violation to the appropriate prosecuting authority if that court finds there is probable cause to believe the child committed the alleged offense and the child is not suitable to treatment or the public safety is not served under the provisions of laws relating to juvenile courts. Cf., Minn.Stat. § 260.125 (1986).
The United States Supreme Court has observed that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). In McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 1986, 29 L.Ed.2d 647 (1971), the Court held that due process does not require a jury trial in the juvenile court’s adjudicative stage. Here, however, there is more involved than a request for a jury trial in juvenile court — this person is requesting a jury trial with the attendant rights guaranteed all citizens.
The most persuasive argument for the more limited constitutional protections available to a juvenile within the juvenile system is that these rights are surrendered in return for other benefits. See, e.g., In re Gault, 387 U.S. at 21, 87 S.Ct. at 1440 (“It is claimed that juveniles obtain benefits from the special procedures applicable to them which more than offset the disadvantages of denial of the substance of normal due process.”). The most substantial of these benefits is that the child is to be treated or rehabilitated rather than punished. Cf. id. 387 U.S. at 16, 87 S.Ct. at 1437.
K.A.A., however, has been found by the trial court to be not suitable for treatment within the juvenile system. This juvenile would be denied constitutional protections without receiving the benefits of the juvenile system if the juvenile court were to retain jurisdiction. The prosecutor’s refusal to refer for adult prosecution a juvenile who is not suitable for treatment creates two classes of juveniles. Neither class is suitable for treatment and neither receives the benefits of treatment, but one of these classes receives the full constitutional protections available to criminal defendants. Commentators have noted that under the principles stated in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), this result may be unconstitutional as denying equal protection of the laws. See Unif.Juv.Ct. Act § 34, 9A U.L.A. 51 (1968) (renamed Model Juv.Ct. Act 1985).
I too believe that the prosecutor’s authority to deny a juvenile full constitutional protections even when the juvenile is not suitable for treatment and is willing to waive any other benefits available in the juvenile system denies that juvenile equal protection of the laws. I, therefore, dissent.