Maloney v. Plunkett, Nos. 88-2316

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, Chief Judge, and POSNER and RIPPLE; POSNER
Citation854 F.2d 152
Parties47 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.
Docket Number88-2327,Nos. 88-2316
Decision Date03 August 1988

Page 152

854 F.2d 152
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.
Nos. 88-2316, 88-2327.
United States Court of Appeals,
Seventh Circuit.
Submitted July 12, 1988.
Decided July 14, 1988.
Opinion Aug. 3, 1988.

Page 153

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.

POSNER, Circuit Judge.

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planning to discharge the jury on July 15, we had to act quickly on the plaintiffs' motion, and on July 14, in a brief unpublished order, we granted it.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.

Page 154

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. "Issuance of a writ of mandamus will be appropriate in exceptional cases involving stay orders. This Court has made clear, for example, that a stay order that deprives a party of the right to trial by jury is reversible by mandamus. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 956-57, 3 L.Ed.2d 988 (1959)." 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...

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20 practice notes
  • Edmonson v. Leesville Concrete Co., Inc., No. 87-4804
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 1 Marzo 1990
    ...(unpublished opinion); Boykin v. Hamilton County Bd. of Educ., 869 F.2d 1488 (6th Cir.1989) (unpublished opinion); Maloney v. Plunkett, 854 F.2d 152, 155 (7th 97 863 F.2d 822 (11th Cir.1989). 98 Id. at 828-29. 99 893 F.2d 1004. 100 Id. at 1008. 101 Ibid. 102 476 U.S. at 85, 106 S.Ct. at 171......
  • School Asbestos Litigation, In re, No. 45
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 23 Octubre 1992
    ...well established, "application of the 'black letter' rules for when mandamus will be issued has not been unwavering." Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.1988). Some flexibility is required if the extraordinary writ is to remain available for extraordinary situations. "The writ ......
  • In re Bellsouth Corp., No. 02-15362.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 17 Junio 2003
    ...an erroneous ruling may impose additional cost does not... satisfy the high standard required for mandamus."); Maloney v. Plunkett, 854 F.2d 152, 154-55 (7th Cir.1988) ("[O]rdinarily the inconvenience, lost time, and sunk costs of such further proceedings as could have been avoided by corre......
  • Dunham v. Frank's Nursery & Crafts, Inc., No. 89-2109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 12 Diciembre 1990
    ...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 fo......
  • Request a trial to view additional results
20 cases
  • Edmonson v. Leesville Concrete Co., Inc., No. 87-4804
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 1 Marzo 1990
    ...(unpublished opinion); Boykin v. Hamilton County Bd. of Educ., 869 F.2d 1488 (6th Cir.1989) (unpublished opinion); Maloney v. Plunkett, 854 F.2d 152, 155 (7th 97 863 F.2d 822 (11th Cir.1989). 98 Id. at 828-29. 99 893 F.2d 1004. 100 Id. at 1008. 101 Ibid. 102 476 U.S. at 85, 106 S.Ct. at 171......
  • School Asbestos Litigation, In re, No. 45
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 23 Octubre 1992
    ...well established, "application of the 'black letter' rules for when mandamus will be issued has not been unwavering." Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.1988). Some flexibility is required if the extraordinary writ is to remain available for extraordinary situations. "The writ ......
  • In re Bellsouth Corp., No. 02-15362.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 17 Junio 2003
    ...an erroneous ruling may impose additional cost does not... satisfy the high standard required for mandamus."); Maloney v. Plunkett, 854 F.2d 152, 154-55 (7th Cir.1988) ("[O]rdinarily the inconvenience, lost time, and sunk costs of such further proceedings as could have been avoided by corre......
  • Dunham v. Frank's Nursery & Crafts, Inc., No. 89-2109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 12 Diciembre 1990
    ...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 fo......
  • Request a trial to view additional results

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