Wilson v. Kauffman

• Decision Date: 26 November 1990
• Docket Number: No. 20A04-8909-CV-398,20A04-8909-CV-398
• Citation: 563 N.E.2d 610
• Parties: Toni WILSON, Appellant, v. Ledger D. KAUFFMAN, Appellee.
• Court: Indiana Appellate Court

Page 610

563 N.E.2d 610

Toni WILSON, Appellant, v. Ledger D. KAUFFMAN, Appellee.

No. 20A04-8909-CV-398.

Court of Appeals of Indiana Fourth District.

Nov. 26, 1990.

Rehearing Denied Jan. 18, 1991.

Charles C. Wicks, Elkhart, for appellant.

John D. Ulmer, Bryant C. Haney, Yoder, Ainlay, Ulmer & Buckingham, Goshen, for appellee.

MILLER, Presiding Judge.

Toni Wilson, Plaintiff-appellant, a black female, obtained a jury award of $10,000 for injuries she sustained when a car driven by Ricky Chapman was pushed into her car by Ledger Kauffman, Defendant-appellee. Wilson appeals the jury award in her favor, raising the following issues:

I. Whether the court erred in granting defendant's peremptory challenge to juror Pulluaim, who is black.

II. Whether the court erred in denying Wilson's request for a limiting instruction, instructing the jury that the medical report of Dr. Gupta, who did not testify at trial, was admissible only because it was used by Dr. Papadopoulos, whose videotaped deposition was shown at trial, in arriving at his opinion of Wilson's injuries and not for the truth of the matters asserted in the report.

III. Whether the jury verdict of $10,000 was inadequate.

We affirm.

FACTS

The facts most favorable to the judgment are as follows:

On October 13, 1983, Toni Wilson (Wilson) was traveling north on Benham Avenue in Elkhart, Indiana, when she stopped behind a car that was stalled on the roadway. A car driven by Ricky Chapman stopped behind Wilson's car. Ledger Kauffman was also travelling north on Benham when he saw the Chapman vehicle stopped ahead of him. Kauffman was unable to stop his truck in time to avoid hitting Chapman's car. As a result of the impact between the Kauffman and Chapman vehicles, Chapman's car was forced into the back of Wilson's car.

On October 1, 1989, the court impaneled a jury which contained one black juror, Charlie Pulluaim. While Kauffman was questioning Pulluaim, the trial judge instructed Kauffman that if Pulluaim was excused, it would have to be for a racially neutral reason. After Kauffman decided to strike Pulluaim, the court asked Kauffman During trial, the videotaped deposition of Dr. Papadopoulos, one of Wilson's physicians, was shown to the jury. During his deposition, Dr. Papadopoulos stated that he considered a report prepared by Dr. Gupta, another of Wilson's physicians, in forming his opinion about Wilson's injuries. The report was offered into evidence by Kauffman and admitted over Wilson's objections. Wilson then requested an instruction to the jury that Dr. Gupta's report was offered not for the truth of the matters asserted in the report, but because it was used by Dr. Papadopoulos in arriving at his opinion. Her request was denied.

to submit his reasons for excusing Pulluaim in writing. Wilson was also permitted to submit her objection in writing, but the court found Chapman's reason for excusing juror Pulluaim to be racially neutral.

After the trial, the jury returned a verdict in favor of Wilson and granted her damages in the amount of $10,000.

DECISION

Issue I

The first issue raised by Wilson is whether the court erred in granting Kauffman's peremptory challenge of juror Pulluaim, the only black person on the venire. Wilson contends she was denied equal protection of the laws when the court permitted Kauffman to peremptorily strike Pulluaim. She cites Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to support her argument that, once she made a prima facie case of purposeful discrimination, the burden was on Kauffman to prove he was seeking to remove Pulluaim for a racially neutral reason, which he failed to do. Although Wilson recognizes that Batson is a criminal case, she argues it is nonetheless applicable to jury selection in civil cases.

Kauffman, on the other hand, argues that the holding in Batson is limited to jury selection in criminal cases. He asserts that in civil cases, only private actors are involved. Therefore, there is no state action, which is required before a constitutional violation may be found. Alternatively, he argues that Wilson failed to meet her burden of proving purposeful discrimination as required by Batson. He also argues that Pulluaim was dismissed for a racially neutral reason.

Private use of state-sanctioned private remedies does not rise to the level of state action. Tulsa Professional Collection Services v. Pope (1988), 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565. However, when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found. Id. In order for there to be state action, it must be determined that 1) the claimed deprivation has resulted from the exercise of a right or privilege having its source in governmental authority; and 2) there is some figure present in the action who can be fairly characterized as a state actor. Lugar v. Edmondson Oil Co. (1982), 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482.

It is clear that the first requirement has been met. The claimed deprivation has resulted from a litigant's use of a statutorily ¹ granted peremptory challenge. Id. However, the question of whether there is some figure who can be characterized as a state actor is more difficult to answer.

In a criminal case, the state actor is the prosecutor who exercises the peremptory challenge. Batson, supra. In civil cases, a private litigant exercises the challenge. The only other possible state actor, therefore, is the court. However, in Edmonson v. Leesville Concrete Co., Inc. (1990), 5th Cir., 895 F.2d 218, cert. granted (1990), --- U.S. ----, 111 S.Ct. 41, 112 L.Ed.2d 18, the court held that when the court allows a juror to be removed peremptorily, it is exercising a ministerial function of permitting venire member cut by counsel to depart. According to the Edmonson court, this purely ministerial action is too insignificant to be considered state action.

In Fludd v. Dykes (1989), 11th Cir., 863 F.2d 822, reh'g denied, (1989), 873 F.2d 300, cert. denied, (1989), --- U.S. ----, 110 S.Ct. 201, 107 L.Ed.2d 154, the court reached the opposite result. That court held that when blacks are excluded from jury service because of their race, it is the court and not the attorney who is the actor. Id. The court reasoned:

"Thus, until the trial judge overrules a party's objection to the racial composition of the venire, the law treats any previous decision on the part of a state entity to discriminate as harmless, insofar as the objecting party is concerned. The trial judge's decision--to proceed to trial, over the party's objection, with a jury selected from the venire on the basis of race--is the one that harms the objecting party. In overruling the objection, which informed the court that the peremptory challenger may be excluding blacks from the venire on account of their race, the judge becomes guilty of the sort of discriminatory conduct that the equal protection clause proscribes. Because the trial judge constitutes the discriminatory state actor under the equal protection clause, we conclude that there is no constitutional bar to the application of Batson to a civil suit."

Id. at 828. The trial court judge is the state actor because it is the trial court judge who must decide whether to excuse a juror over an objection by a party that the juror is being excused because of race. Therefore, there is significant action on the part of the judge--a state actor--to sustain a constitutional challenge.

The conclusion reached in Fludd is consistent with the Supreme Court's holding in Tulsa Professional Collection Services, supra, where the Court was faced with a constitutional challenge to a nonclaim provision of Oklahoma's probate code which barred creditors' claims against an estate unless they are presented to the executor within two months of the publication of notice of the commencement of probate proceedings. Pope, the executrix of the estate, argued that there was no state action because the nonclaim statute was merely a self-executing statute of limitations. The Court, however, found significant state action because of the involvement of the probate court: the probate court is intimately involved in the administration of the estate; the nonclaim statute becomes operative only after probate proceeding has been initiated; and the court appoints the executrix of the estate. Id.

Likewise, there is significant state involvement here. The court summons the venire, the right to the peremptory challenge is granted by statute and the statute is only significant once the legal proceedings have begun. More importantly, it is the judge who, when faced with a situation such as the one here, must decide whether there exists a racially neutral reason for excusing the juror.

Our Indiana constitution guarantees the right to trial by jury in civil cases. Art. 1 Sec. 20. The selection of persons to be drawn as prospective jurors is the duty of the jury commissioners, who must select those persons "without favor or prejudice". IC 33-4-5-1. The selection process itself is governed by statute and is designed to be fair and impartial. See e.g. IC 33-4-5-2; IC 33-4-5-9. If a litigant were permitted to exercise peremptory challenges to strike jurors because of their race, these provisions would be rendered a nullity.

In summary, we agree with the Fludd court that there is state action involved in the jury selection process in a civil case and hold, consistent with other jurisdictions, ² that Batson is applicable to jury selection in civil cases.

Under Batson, the litigant challenging the use of a peremptory challenge must establish a prima facie case of purposeful racial discrimination in the selection of the jury by showing that: 1) she is a member of a cognizable racial group; 2) the prosecution has used a peremptory challenge to remove from the venire members of the litigant's race; and 3) the facts and circumstances of the...