City of Mandan v. Fern

• Citation: 501 N.W.2d 739
• Decision Date: 16 June 1993
• Docket Number: Cr. N
• Parties: CITY OF MANDAN, Plaintiff and Appellee, v. Scott FERN, Defendant and Appellant. o. 920274.
• Court: North Dakota Supreme Court

Page 739

501 N.W.2d 739

CITY OF MANDAN, Plaintiff and Appellee, v. Scott FERN, Defendant and Appellant.

Cr. No. 920274.

Supreme Court of North Dakota.

June 16, 1993.

Benjamin C. Pulkrabek (argued), City Atty., Mandan, for plaintiff and appellee.

Thomas Dickson (argued), of Nodland & Dickson, Bismarck, for defendant and appellant.

LEVINE, Justice.

Scott Fern appeals from a county court judgment, entered upon a jury verdict, finding him guilty of driving while under the influence of alcohol. We hold that the question of whether the prosecution violated the equal protection clause of the fourteenth amendment of the United States Constitution in the exercise of its peremptory challenges during jury selection must be answered by the trial court and we remand for that purpose.

On December 5, 1991, Fern was arrested in Mandan and charged with driving while under the influence of alcohol. On the day of trial, the jury panel consisted of 15 men and six women. Of the 12 persons called to the jury box for voir dire, seven were men and five were women. During selection of the six-person jury, the prosecution struck three men from the jury panel through its use of peremptory challenges. Fern objected to the prosecution's use of its peremptory challenges as being based solely on gender and, therefore, unconstitutional under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. The trial court excused the three men from the jury panel. Fern used three peremptory challenges to strike two men and one woman from the jury panel. Each side used only three of its four allotted peremptory challenges. See NDRCrimP 24(b)(1). The jury, comprised of four women and two men, convicted Fern.

Fern asserts that the prosecution's use of gender-based peremptory challenges in this case violated his equal protection rights under Batson. ¹

In Batson, the United States Supreme Court held that the equal protection clause of the fourteenth amendment prohibits a prosecutor from peremptorily striking a juror solely on the basis of race. The Court reasoned that equal protection principles forbid racially discriminatory peremptory strikes because racial discrimination during jury selection harms the excluded jurors, undermines public confidence in the judicial system and stimulates community prejudice. Batson, supra, 476 U.S. at 87, 106 S.Ct. at 1718.

Purposeful or deliberate exclusion of blacks from the jury on account of race through a prosecutor's use of peremptory challenges was first held to violate the equal protection clause in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). No examination of the prosecutor's reasons for the exercise of peremptory challenges in any given case was required or permitted; proof of purposeful discrimination was to be derived from examining peremptory challenges over a series of cases. Swain, supra, 380 U.S. at 222, 85 S.Ct. at 837. The burden was onerous. An inference of purposeful discrimination would be raised only when there was evidence that a prosecutor, "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes ... with the result that no Negroes ever serve on petit juries...." Swain, supra, 380 U.S. at 223, 85 S.Ct. at 837.

In Batson, the Court overruled Swain's unforgiving evidentiary burden because it was "inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause." Batson, supra, 476 U.S. at 93, 106 S.Ct. at 1721. It held that a defendant may establish a prima facie case of purposeful racial discrimination during jury selection based solely on the facts of that particular defendant's case:

"[T]he defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, [430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, [345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953) ]. 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. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination." Batson, supra, 476 U.S. at 96, 106 S.Ct. at 1723.

Once the defendant makes a prima facie showing, the burden shifts to the prosecution to come forward and articulate a race-neutral explanation for the challenges related to the particular case to be tried. Batson, supra, 476 U.S. at 97-98, 106 S.Ct. at 1723-1724. A mere denial that the prosecutor had a discriminatory motive will not suffice; "the prosecutor must give a 'clear and reasonably specific' explanation of ... 'legitimate reasons' for exercising the challenges." Batson, supra, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20 [quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981) ].

The United States Supreme Court has not ruled whether Batson principles extend to peremptory challenges based on gender discrimination. ² Relying on several cases from other jurisdictions, Fern asserts that Batson principles should extend to gender discrimination in the selection of a jury. We agree. ³

There is a split in authority over whether Batson principles should apply to gender-based peremptory challenges. It appears that seven jurisdictions say they should. United States v. De Gross, 960 F.2d 1433 (9th Cir.1992); Di Donato v. Santini, 232 Cal.App.3d 721, 283 Cal.Rptr. 751 (1991) [state constitutional grounds]; State v. Levinson, 71 Haw. 492, 795 P.2d 845 (1990) [state and federal constitutional grounds]; Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993) [state constitutional grounds]; State v. Gonzales, 111 N.M. 590, 808 P.2d 40 (Ct.App.1991) [state constitutional grounds]; People v. Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 279 (1990) [federal constitutional grounds]; and State v. Burch, 65 Wash.App. 828, 830 P.2d 357 (1992) [state and federal constitutional grounds]. ⁴

We find enlightened and enlightening the reasoning of the Ninth Circuit Court of Appeals in De Gross. Gender discrimination, like racial discrimination, stimulates community prejudice which impedes equal justice for men and women. De Gross, supra, 960 F.2d at 1438. Peremptory strikes based on gender, like those based on race, harm excluded jurors because discriminatory strikes bear no relationship to an individual's qualifications or ability to perform or contribute to society. De Gross, supra, 960 F.2d at 1439. Full community participation in the administration of the criminal justice system, whether measured by race or gender, is critical to public confidence in the system's fairness. Id. The court concluded that peremptory challenges made solely upon gender, like racial challenges, are based either on the false assumption that members of a certain group are either unqualified to serve as jurors, or unable to consider impartially the case against a member or nonmember of their group. Id.

We review alleged sex discrimination under an intermediate standard of scrutiny. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). Under that standard, sex discrimination is not unconstitutional if it is substantially related to the achievement of important governmental objectives. Id. The purpose of peremptory challenges is to obtain a fair and impartial jury which is, of course, an important governmental objective. De Gross, supra, 960 F.2d at 1439. So, the question is whether a peremptory challenge which is grounded on a venireperson's sex is substantially related to achieving a fair and impartial jury?

The De Gross court nicely explains the difference between the legitimate peremptory strike based upon the "impression" of the lawyer and the tainted peremptory challenge based upon gender:

"But challenges explained solely by a venireperson's gender are not based on a party's sudden impression of a particular venireperson's ability to be impartial. Rather, like racial challenges, they are based either on the false assumption that members of a certain group are unqualified to serve as jurors, Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (citing Norris v Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 584, 79 L.Ed. 1074 (1935)), or on the false assumption that members of certain groups are unable to consider impartially the case against a member or a nonmember of their group. Cf. Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (assumption that members of a certain group are unable to consider a case against a member of their group is false). If the decision to exclude a juror is based solely on the sex of the juror, the decision to exclude must necessarily be based on these false assumptions and does not aid in achieving an impartial jury. See id. at 98-99, 106 S.Ct. at 1724 (prohibiting discriminatory peremptory challenges will not undermine the contribution of peremptory challenges to the administration of justice)." Id.

Because gender-based challenges do not aid in achieving fair and impartial juries, they are not substantially related to the governmental objective of achieving a fair and impartial jury. ⁵ Accordingly, gender discrimination violates not only the excluded juror's equal protection rights but also the defendant's. De Gross, supra, 960 F.2d at 1438. The absence of a substantial relationship between means and end makes gender- or...