Maloney v. Plunkett, s. 88-2316
| Decision Date | 03 August 1988 |
| Docket Number | 88-2327,Nos. 88-2316,s. 88-2316 |
| Parties | 47 Fair Empl.Prac.Cas. 842 In the Matter of William M. MALONEY, et al., Petitioners, v. Paul E. PLUNKETT, United States District Judge, Northern District of Illinois, Eastern Division, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward R. Theobald, Chicago, Ill., for petitioners.
Patricia Rosen, Chief Civ. Appeals Div., Atty. General's Office, Chicago, Ill., for respondent.
Before BAUER, Chief Judge, and POSNER and RIPPLE, Circuit Judges.
On July 12, the plaintiffs in a "reverse discrimination" suit pending in the district court--a civil rights suit that several white Chicago policemen had brought against city officials--asked us to vacate Judge Plunkett's order (1) discharging the jury that had been selected to hear the case, (2) ordering that a new jury be selected, and (3) forbidding the parties to exercise any peremptory challenges in the selection of the new jury. Judge Plunkett based this order on his finding that both sides had exercised peremptory challenges on racial grounds--the plaintiffs to exclude blacks from the jury, the defendants to exclude whites. Because Judge Plunkett had announced that he was planning to discharge the jury on July 15, we had to act quickly on the plaintiffs' motion, and on July 14, in a brief unpublished order, we granted it. This opinion explains the basis of our action more fully.
The plaintiffs both challenge the correctness of the judge's conclusion that they exercised their peremptory challenges on racial grounds and argue that, in any event, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which held that a prosecutor's exercise of peremptory challenges on racial grounds in a criminal case violates the equal protection clause of the Fourteenth Amendment, does not apply to the exercise of peremptory challenges on racial grounds by private parties in civil suits, such as the plaintiffs here. The defendants disagree with both points but agree that the sanction of forbidding either side to exercise peremptory challenges in the selection of the new jury is improper and can and should be corrected by the issuance of a writ of mandamus. The defendants have therefore filed their own petition for mandamus, but our disposition of the plaintiffs' petition has made it moot.
Interlocutory rulings ordinarily are unappealable until the end of the proceedings in the district court; and this principle is not to be evaded by facile invocation of mandamus, In re City of Springfield, 818 F.2d 565 (7th Cir.1987), which 28 U.S.C. Sec. 1651(a) empowers us to issue in appropriate cases. Earlier this year the Supreme Court repeated that only exceptional circumstances amounting to usurpative conduct justify the issuance of a writ of mandamus to correct a ruling by a district judge. Gulfstream Aerospace Corp. v. Mayacamas Corp., --- U.S. ----, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988). Yet in the same opinion the Court indicated that a less stringent test might be proper where the challenged ruling had infringed the right to jury trial. 108 S.Ct. at 1143 n. 13. Although this view is supported by a number of other cases as well--see 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure Sec. 3935, at pp. 242-44 (1977), and cases discussed in the majority and dissenting opinions in First Nat'l Bank of Waukesha v. Warren, 796 F.2d 999 (7th Cir.1986)--the panel majority in Waukesha declined to recognize a general right to challenge such rulings on mandamus. The district judge in that case had classified an issue as equitable and hence not triable to a jury; this court was unwilling to make such rulings reviewable as a matter of course on mandamus.
In the present case the district judge did not deny either side its Seventh Amendment right to trial by jury, but he did deny a statutory incident to jury trial; more important, he deliberately refused to enforce a peremptory (pun intended) statutory command. Section 1870 of the Judiciary Code provides, in words that could not be clearer, that, "In civil cases, each party shall be entitled to three peremptory challenges." (There is additional language relating to multi-party cases, such as this one, and to challenges for cause, but it does not qualify the simple and clear imperative that we have quoted.) Cases deeming the denial of a party's right to exercise his peremptory challenges reversible error are legion, see, e.g., Carr v. Watts, 597 F.2d 830 (2d Cir.1979) (per curiam), and there is no argument--there can be no argument--that section 1870 is inapplicable to the present case. Nevertheless Judge Plunkett forbade either side to exercise any peremptory challenges in selecting a new jury. He was angry because he thought that the plaintiffs, and to a lesser extent the defendants, had used their peremptory challenges to alter the racial composition of the jury. The deprivation of the statutory right to exercise peremptory challenges as a sanction for misconduct is, so far as we are able to determine, utterly without precedent. Absence of authority would not necessarily be decisive if Judge Plunkett had given a reason for punishing the parties in this way, other than sheer irritation at what he considered their childish and improper behavior; but he gave no reason. He was annoyed with the parties and didn't want the bother at a new voir dire of trying to prevent them from again exercising their peremptory challenges...
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