Dunham v. Frank's Nursery & Crafts, Inc.

Decision Date12 December 1990
Docket NumberNo. 89-2109,89-2109
Citation919 F.2d 1281
PartiesMartha DUNHAM and Preston Dunham, Plaintiffs-Appellants, v. FRANK'S NURSERY & CRAFTS, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Saul I. Ruman, Thomas A. Clements, Ruman, Clements & Tobin, Hammond, Ind., for plaintiffs-appellants.

Frank J. Galvin, Robert H. Bahner, Galvin, Stalmack, Kirschner & Clark, Hammond, Ind., for defendant-appellee.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The issue in this case is whether the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) forbids a private litigant in a civil case from exercising a peremptory challenge on racial grounds. Other circuits confronting this issue have reached opposite conclusions. In Fludd v. J.B. Dykes, 863 F.2d 822 (11th Cir.1989), the Eleventh Circuit held that Batson applies to the exercise of peremptory challenges by a private litigant in a civil case. In a recent en banc opinion, the Fifth Circuit held that Batson is limited to criminal cases. Edmonson v. Leesville Concrete Co., Inc., 895 F.2d 218 (5th Cir.1990) (en banc). 1 We declined to resolve this issue in Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.1988) on the grounds that it was not ripe for decision in that appeal. Today, we join the Eleventh Circuit in holding that Batson forbids a private litigant in a civil case from exercising a peremptory challenge on racial grounds. 2

Martha Dunham was injured in December of 1985 while shopping at Frank's Nursery & Crafts in Merrillville, Indiana. Mrs. Dunham received an electrical shock when she placed a Christmas ornament plug into a portable electric outlet. Frank's directed its customers to use the portable outlet to test the working condition of electrical ornaments prior to purchase. Martha Dunham brought a negligence suit against Frank's to recover for her injuries; her husband, Preston Dunham, asserted a claim for lost consortium and services of his wife due to her injuries. Jurisdiction in federal court was based upon diversity of citizenship in accordance with 28 U.S.C. Sec. 1332. 3

Frank's and the Dunhams both consented to a United States Magistrate conducting all proceedings. On April 24, 1989, a jury trial was commenced. Both Mr. and Mrs. Dunham are black, and of the jury panel examined during voir dire, the only black member to be seated on the petit jury was peremptorily struck by Frank's. The Dunhams objected to this peremptory strike, claiming that it was racially motivated. The magistrate declined to require Frank's to provide a non-racial explanation for its strike, correctly noting that neither the Supreme Court nor the Seventh Circuit has held that Batson applies to a civil case. The case proceeded to trial with a jury of seven white members. On April 28, 1989, the jury rendered a verdict against the Dunhams finding that, under Indiana's Comparative Fault Act, Martha Dunham's fault was greater than fifty percent. The Dunhams appeal solely on the ground that the magistrate erred in declining to order Frank's to provide a non-racial explanation for its peremptory strike as required by Batson.

In Batson, the Supreme Court held that the equal protection clause of the fourteenth amendment forbids a prosecutor in a state criminal trial from using peremptory challenges to strike potential jurors from the venire solely because they are of the same race as the defendant. 476 U.S. at 89, 106 S.Ct. at 1719. 4 In addition, the Court formulated an evidentiary standard for establishing that the state has struck a potential juror on account of his race. Specifically, the Court held that the prosecutor's striking of a defendant's racial peer from the venire can be used as circumstantial evidence of the prosecutor's discriminatory intent. In so doing, the Court overruled the portion of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) which held that a prosecutor's use of a peremptory challenge is presumptively based on proper considerations related to the case he is trying. Departing from Swain, the Court concluded that a defendant may establish a prima facie case of racial discrimination solely on evidence concerning the prosecutor's use of a peremptory challenge at the defendant's trial. Batson, 476 U.S. at 95-96, 106 S.Ct. at 1722-23.

In order to establish a prima facia case under Batson, the defendant must first show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to prevent members of his race from serving on the jury. Second, the defendant is entitled to rely on the fact that the mere exercise of a peremptory challenge can be used as circumstantial evidence of discriminatory intent. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptories to exclude veniremen from the petit jury on account of their race. Id.

Once the defendant makes a prima facia showing, the burden shifts to the state to come forward with a non-racial explanation for its challenge. Although the prosecutor's explanation does not have to rise to the level of cause, the mere denial of a discriminatory motive, or an affirmation of prosecutorial good faith does not suffice as a neutral explanation. After hearing the state's explanation, the trial court must determine if the defendant has established purposeful discrimination. Id. at 97-98, 106 S.Ct. at 1723-24.

It is important to emphasize that the holding of Batson was based on the equal protection clause of the fourteenth amendment, not the sixth amendment right to a jury trial in criminal cases. 5 While sixth amendment rights apply only to criminal defendants, equal protection rights apply to civil litigants as well as criminal defendants. Accordingly, the equal protection rationale underlying Batson does not stem from any rights or protections afforded to a criminal defendant that are not afforded to a civil litigant. The Court in Batson based its holding on three basic principles. First, the Court stated that "[c]ompetence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. A person's race simply 'is unrelated to his fitness as a juror' " 476 U.S. at 87, 106 S.Ct. at 1718 (citations omitted). Second, the Court stated that a prosecutor shall not be allowed to assume that a juror of the defendant's race will be partial to the defendant simply because of their shared race. Id. at 97, 106 S.Ct. at 1723. Finally, the Court reasoned that "[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Id. at 87, 106 S.Ct. at 1718. It is obvious that these three principles are not dependent upon the fact that the jurors in Batson were being selected to sit for a criminal trial rather than a civil trial. Because the rationale of Batson is not inherently dependent upon the fact that Batson was a criminal proceeding, it is only logical to conclude that the Supreme Court would not intend the equal protection requirements of Batson to be limited to criminal cases.

This conclusion does not end our analysis, however, for the Constitution does not forbid private persons from discriminating. For a civil litigant to invoke the requirements of the equal protection clause, the litigant must show that the alleged discriminatory act is "state action" subject to the dictates of the Constitution. State action is readily apparent in the context of a criminal case; for there, a representative of the state--the prosecutor--exercises the peremptory challenge. However, state action is not so obvious in a civil case where the party utilizing the peremptory challenge is often a private individual, not a representative of the state. But the fact that a private litigant exercises a peremptory challenge does not automatically make that act private. As the level of interaction and cooperation between private individuals and the state rises--as it does in the jury selection process--it becomes increasingly difficult to discern precisely where private conduct ends and state action begins. In this case, Frank's, a private litigant, is the alleged discriminatory actor. For Batson to apply in this situation, the alleged discriminatory act--Frank's exercise of a peremptory challenge--must fairly be said to be conduct attributable to the state. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).

In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court established a two-part framework for determining the presence or absence of state action. The first part asks whether the claimed constitutional deprivation has resulted from the exercise of a right or privilege having its source in state authority. Id. at 937, 102 S.Ct. at 2753-54. As Frank's concedes, this requirement is clearly satisfied here. Specifically, 28 U.S.C. Sec. 1870 provides that each party in a civil case shall be entitled to three peremptory challenges. The crucial question is whether the Dunhams can establish Lugar 's second requirement: under the facts of a given case, can the party charged with the deprivation appropriately be characterized as a "state actor"? Id. The Court emphasized that a private party who exercises a right having its source in state authority--Lugar 's first requirement--is not considered a state actor--Lugar 's second requirement--absent "something more." Id. at 937-39, 102 S.Ct. at 2754.

Determining what constitutes "something more" is far from a precise task. In Lugar, ...

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