860 F.2d 1308 (5th Cir. 1988), 87-4804, Edmonson v. Leesville Concrete Co., Inc.

Docket Nº:87-4804.
Citation:860 F.2d 1308
Party Name:Thaddeus Donald EDMONSON, Plaintiff-Appellant, v. LEESVILLE CONCRETE COMPANY, INC., Defendant-Appellee.
Case Date:December 05, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1308

860 F.2d 1308 (5th Cir. 1988)

Thaddeus Donald EDMONSON, Plaintiff-Appellant,



No. 87-4804.

United States Court of Appeals, Fifth Circuit

December 5, 1988

Order on Grant of Rehearing En Banc Jan. 23, 1989.

Page 1309

James B. Doyle, Lake Charles, La., for plaintiff-appellant.

John B. Honeycutt, Jr., Steven C. Graalmann, Percy, Smith, Wilson, Foote, Walker & Honeycutt, Alexandria, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The issue is whether the guarantee of equal protection of the laws forbids the exercise of peremptory challenges on racial grounds by a private litigant in the trial of a civil case in federal district court. We hold that it does, thus extending the principle announced by the Supreme Court in Batson v. Kentucky. 1


Injured in an accident on a construction job at Fort Polk, Louisiana, a federal enclave, Thaddeus Donald Edmonson, a 34-year-old black male, sued Leesville Concrete

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Company for negligence in federal district court. 2 The case was tried to a jury.

Edmonson used all three of his peremptory challenges to excuse members of the venire who were white. Leesville challenged peremptorily two prospective jurors who were black and one who was white. Citing Batson, Edmonson asked the district court to require Leesville to articulate a neutral explanation for the manner in which it had exercised its challenges. The district court denied the request on the ground that the Batson ruling did not apply to civil proceedings, and then proceeded to impanel a jury composed of eleven white jurors and one black juror. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000, but because it found him 80% contributorily negligent, awarded him only $18,000. Edmonson seeks a new trial because of Leesville's alleged racial discrimination in its exercise of peremptory challenges.


In Batson, the Supreme Court held that the equal protection clause of the Fourteenth Amendment forbids the prosecutor in a state criminal action to exercise peremptory challenges to remove members of the defendant's race from the venire. A defendant in such a case, the Court noted, may establish a prima facie case of purposeful discrimination in the selection of the petit jury "solely on evidence concerning the prosecutor's exercise of peremptory challenges" at the trial. 3 To do so, the defendant must first show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove members of his race from the venire. Second, the defendant may rely on the indisputable fact that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " 4 Finally, the defendant must show that these facts and any other relevant circumstances "raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." 5 In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. The Court stated, "We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." 6

"Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." 7 After receiving the State's explanation, the trial court "will have the duty to determine if the defendant has established purposeful discrimination." 8

While Batson was based on the equal protection clause of the Fourteenth Amendment, which applies only to the states, and the Constitution contains no equivalent express provision concerning federal governmental action, the due process clause of the Fifth Amendment, which applies to federal action, implies a like guarantee against the denial of equal protection of the laws by the federal government. 9 We must initially determine, therefore, whether the exercise of peremptory challenges by a private litigant in a civil action pending in federal court is a government action, to which the Fifth Amendment applies, or a private action, which the Constitution does not reach. If the action is

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governmental in nature, we must then decide whether to extend the principle underlying Batson to civil cases.


The equal protection guarantee does not forbid discrimination by private persons. As the level of interaction and cooperation between private individuals and the state rises, however, it becomes increasingly difficult to discern precisely where private conduct ends and state action begins. 10 The Court has said, in Burton v. Wilmington Parking Authority, 11 "[T]o fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which 'This Court has never attempted.' Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." The criterion, the Court later stated in Moose Lodge No. 107 v. Irvis, 12 is whether the government has " 'significantly involved itself with invidious discriminations.' "

In Lugar v. Edmondson Oil Co., 13 the Court formulated more precisely its inquiry into state action: "[T]he first question is whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority." The "second question," Lugar stated, is whether, under the facts of the case, the private persons "may be appropriately characterized as 'state actors.' " 14 That requirement was met in Lugar because "a private party's joint participation with state officials ... is sufficient to characterize that party as a 'state actor'...." 15

In a number of other cases the Court has traced the line that separates private from governmental action.

Shelley v. Kraemer 16 established that the equal protection clause forbids judicial enforcement of restrictive covenants based on race. Despite the fact that a restrictive covenant is a contractual arrangement between private parties, the Supreme Court held that enforcement of such private agreements by "judicial officers in their official capacities is to be regarded as action of the State." 17 Confronted by overlapping relationships between public and private actors, the Supreme Court in Shelley recognized that governmental action triggered by a private litigant retains its official character. Thus, the Court held in Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia, 18 state-appointed trustees may not enforce a provision in a will setting up a school for "poor white male orphans" by denying admission to a non-white person.

In Tulsa Professional Collection Services v. Pope, 19 the Court held that the state acts when "private parties make use of state procedures with the overt, significant assistance of state officials," as was the case when the executrix of an estate denied a claim made under a state nonclaim statute that became operative only after probate proceedings had been commenced. In that situation, the time bar was not self-executing; the "probate court is intimately involved throughout, and without that involvement

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the time bar is never activated." 20

In Burton v. Wilmington Parking Authority, the Court held that the exclusion of a black would-be patron from a restaurant located in a state-owned and operated parking facility was state action even though the decision to do so was made by the restaurant operator, a private concern. The state "effectively abdicate[d] its responsibilities," the Court held, by failing to censure racial discrimination occurring on its property, a duty that the state cannot "ignor[e]" or "fail[ ] to discharge[,] ... whatever the motive." 21

28 U.S.C. Sec. 1870 provides, "In civil cases, each party shall be entitled to three peremptory challenges." If the Congress had the poor judgment to enact a statute declaring, "Peremptory challenges may be used to excuse jurors on the basis of their race," there would be little doubt that the statute would be unconstitutional. This conclusion ineluctably follows from the decision in Reitman v. Mulkey, 22 in which the Supreme Court held unconstitutional California Proposition 14, an amendment to the State constitution permitting any person to decline to sell or lease property to another person "as he, in his absolute discretion, chooses." By adopting this amendment, the Supreme Court held, the state affirmatively sanctioned private discrimination as one of its basic policies. Interpreting 28 U.S.C. Sec. 1870 to allow the exclusion of jurors because of their race would condone conduct that could not be explicitly allowed.

That the statutory right to challenge jurors is exercised by a private litigant does not of itself make the action private. The government is intimately involved in the process by which a litigant challenges a prospective juror: the government summons the venire to appear in court at a particular time and place; the right to peremptory challenges is granted by a federal statute; the challenges are invoked in the course of a judicial proceeding, and on a facility operated by the government, usually in a federal courtroom or, for convenience, in the judge's chambers; they are not self-executing but are effected by the action of the judge; and the judge as government official acts in a court required by the Constitution to be open to the public which may thereby observe the court's toleration of the...

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