895 F.2d 218 (5th Cir. 1990), 87-4804, Edmonson v. Leesville Concrete Co., Inc.

Docket Nº:87-4804.
Citation:895 F.2d 218
Party Name:Thaddeus Donald EDMONSON, Plaintiff-Appellant, v. LEESVILLE CONCRETE COMPANY, INC., Defendant-Appellee.
Case Date:March 01, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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895 F.2d 218 (5th Cir. 1990)

Thaddeus Donald EDMONSON, Plaintiff-Appellant,

v.

LEESVILLE CONCRETE COMPANY, INC., Defendant-Appellee.

No. 87-4804.

United States Court of Appeals, Fifth Circuit

March 1, 1990

As Corrected May 22, 1990.

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

Joseph R. Ward, Jr., Anthony J. Clesi, Jr., New Orleans, La., pro se.

Steven C. Graalmann, John B. Honeycutt, Jr., Percy, Smith, Wilson, Foote, Walker & Honeycutt, Alexandria, La., John S. Baker, Jr., Atty., LSU Law Center, Baton Rouge, La., for amicus curiae Ward and Clesi.

John J. Weigel, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for amicus curiae Defense Research Institute, Inc.

Wood Brown, III, New Orleans, La., for amicus curiae LADC.

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

Before CLARK, Chief Judge, WISDOM, GEE, RUBIN, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges. 1

GEE, Circuit Judge:

Today we decide whether a private litigant in a federal civil case who challenges a venire member peremptorily can be made to give reasons for his action. Specifically,

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we must determine whether he can be required to do so when his opposing party is a black person and the venireman stricken is black, so as to rebut the inference that he exercised the strike because of the would-be juror's ethnic group.

The Supreme Court has imposed such a requirement in criminal prosecutions of black defendants, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and in partial reliance on that decision a panel of our court has extended the principle to this civil damage suit by reversing the trial court, which had held that such a rule does not obtain in civil litigation. Edmonson v. Leesville Concrete Co., Inc., 860 F.2d 1308 (5th Cir.1988). We now reconsider that decision en banc and affirm the trial court.

We do so for two reasons: the mechanical one, that state action is not present in such a case as this; and the logical one, that striking a venireman in a civil case because you fear he may tend to favor your opponent over you neither demeans him nor calls in question the fairness of the civil justice system.

Facts

The panel opinion states the relevant facts succinctly:

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 Company for negligence in federal district court. 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.

Id. at 1309-10 (footnote deleted).

The Peremptory Challenge: 1066 A.D. through Swain

The history of the peremptory challenge in felony cases stretches back many hundreds of years to the roots of the common law. That history, both in England and in our Country, is reviewed with painstaking thoroughness by Justice White in his opinion for the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). To his account we neither can nor need add anything; we merely repeat his relevant conclusions here for the reader's convenience:

(1) "The use of peremptory challenges is of ancient origin and is given in aid of the party's interest in having a fair and impartial jury." Wright & Miller, Federal Practice & Procedures: Civil Sec. 2483, at 473 (citing to Swain, 380 U.S. 202, 217, 85 S.Ct. 824, 834, 13 L.Ed.2d 759 (1965).

(2) "The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.... It is often exercised upon the 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another....' It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty." 380 U.S., at 220, 85 S.Ct. at 835.

(3) "The presumption [that the prosecutor is using the State's challenges to obtain a fair and impartial jury] is not overcome and the prosecutor therefore

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subjected to examination by allegations that in the case at hand, all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it." 380 U.S., at 222, 85 S.Ct. at 836 (emphasis added).

(4) Where, however, it is shown that peremptories are being used to serve the purpose of generally disqualifying blacks as jurors on a racial basis, relief can be had.

A vigorous dissent, written by Justice Goldberg and joined by Chief Justice Warren and Justice Douglas, would have extended the holding of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), to cover the situation presented by Swain, taking the view that a sufficient showing had been made that the strikes in question were exercised, not with reference to the outcome in the particular case, but for the purpose of denying to black citizens the same right to participate in the administration of justice as whites enjoyed. 2 380 U.S., at 229, 85 S.Ct. at 840 et seq.; see also United States v. Leslie, 783 F.2d 541, 545-46 (5th Cir.1986) (en banc), vacated and remanded, 479 U.S. 1074, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987).

And so matters rested for twenty years. During these, the Equal Protection Clause was thought to bar any general or systematic disqualification of black citizens as veniremen on any notion of supposed incapacity or inferiority, but--as Swain explicitly noted--to permit them to be cut from a jury panel by peremptory challenge for any reason or for no reason, just as any other person might be struck. In essence, the peremptory could be exercised on any ground whatever, including race, that was directed and limited to seeking a given result in a particular case. Only when the challenge could be shown to have been employed as a device to eliminate blacks from jury service generally was it vulnerable to constitutional attack under Swain.

Batson

A little over three years ago, in Batson v. Kentucky, supra, the Court acted for the first time seriously to trammel the use of the peremptory challenge to strike black veniremen in the criminal prosecution of a black. 3 James Batson, a black male, was indicted for burglary and receiving stolen goods. Because the prosecutor struck all four black persons on the venire, Batson was tried by an all-white jury and convicted. His Sixth and Fourteenth Amendment objections unavailing, he sought and got relief from the Supreme Court. The form which it took, however, was a reaffirmation of the root principle of Swain--that systematic exclusion of black jurors from trying black defendants in criminal cases infringes the rights of both--but a revision to lighten the evidentiary burden announced in Swain.

Justice Powell's opinion in Batson therefore observes that "[a] number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause." 4 476 U.S., at 92, 106 S.Ct., at 172. (footnote deleted). Disapproving this very high standard of proof, which by hindsight it correctly characterized as "a crippling burden" 5, the Court laid out a less demanding, two-step process of proof: first, a prima facie showing by the defendant of discrimination against veniremen of his race; second, a coming forward

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by the state with a neutral explanation for each of its peremptory challenges to veniremen of that race. The Court is at pains, moreover, to make plain that an assumption of partiality on the mere basis of shared race will not do as such an explanation. 6 476 U.S., at 97, 106 S.Ct., at 1723. Thus the law of strikes in criminal cases. Should it be extended to civil ones?

State Action?

This issue is accurately stated by our panel as: "[W]hether 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." 860 F.2d, at 1310. The answer to it is dispositive of the appeal; for if governmental action is not present, then the courts hold no warrant to interfere, in the name of equal protection, with the system of civil peremptory challenges. 7

Our inquiry is assisted by the two-step test laid down by the Supreme Court in Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982), for assaying the presence or absence of state action. The first requirement is clearly present here: that the claimed deprivation has resulted from the exercise of a right or privilege having its source in governmental authority. The second, however, seems equally clearly to be wanting: the presence of some figure who can fairly be characterized as a state actor.

In...

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