Right Place, Wrong Argument: Section 10 of the Kansas Constitution is Not a Jurisdiction Provision

State v. Barnes, No. 125,739, 2025 WL 572021 (Kan. Feb. 21, 2025)

Author: Davis Bax, Staff Editor

Issue: Does section 10 of the Kansas Constitution impact a court’s subject matter jurisdiction?

Answer: No.

Facts: In a prior criminal case in Johnson County, Clyde James Barnes Jr. was ordered to be on house arrest, which required him to wear a GPS bracelet.  On July 5, 2020, in Kansas City, Missouri, the bracelet’s tracker strap and proximity tamper alerts went off.  Sufficient evidence illustrated that the bracelet had been tampered with.  

Although the act occurred in Missouri, during closing argument the State explained that Kan. Stat. Ann. § 21-5106 allowed them to charge Barnes with tampering with electronic monitoring equipment if his activities caused a proximate result in Kansas.  Barnes was convicted of the charge.  On appeal, Barnes argued that Kan. Stat. Ann. § 21-5106 violated section 10 of the Kansas Constitution, and that the district court’s subject matter jurisdiction over the tampering charge hinged on the constitutionality of the statute.

Discussion:  The Kansas Supreme Court clarified that section 10 is a vicinage provision, not a jurisdiction provision.^[1]  A court cannot obtain subject matter jurisdiction “by consent, waiver, or estoppel.”^[2]  However, unlike jurisdiction, venue may be waived by a defendant.  Like venue—which determines the place where the trial is held—vicinage is related to location, identifying where the jurors are selected from.

Section 10’s right to “an impartial jury of the county or district in which the offense is alleged to have been committed” is a personal privilege, which may be waived by a defendant.  This provision allows a defendant “to assert their right to be tried in the county where the crime was committed,” operating as an indirect venue limitation.  Thus, section 10 does not address whether courts have subject matter jurisdiction over a crime but rather addresses where a crime can be prosecuted.  Because section 10’s vicinage right does not undermine a court’s subject matter jurisdiction, the court did not examine the constitutionality of Kan. Stat. Ann. § 21-5106 and affirmed the conviction.

Key Authorities: Kan. Stat. Ann. § 21-5106 (Supp. 2020); Kan. Const. Bill of Rights § 10.

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^[1]  See State v. Bunker, 17 P. 651, 653 (Kan. 1888).

^[2]  Nicholson v. Mercer, 559 P.3d 350, 352 (Kan. 2024).