Moore v. RAY SUMLIN CONST. CO., INC.Moore v. RAY SUMLIN CONST. CO., INC.
This is an appeal from a judgment rendered on a jury verdict in favor of the defendant, Ray Sumlin Construction Company, Inc. (“Sumlin Construction“), in a personal injury action that arose from a workplace accident. The only issue this Court will address at this stage is whether this cause is due to be remanded to allow the trial court to conduct an evidentiary hearing to determine if the plaintiffs, Andy and Zeatherine Moore, made out a prima facie showing of purposeful discrimination by Sumlin Construction in its use of its peremptory challenges during the jury selection process.
Andy Moore, who is black, was employed by Donaghey Plumbing Company (“Donaghey“), a subcontractor on a construction project supervised by Sumlin Construction, the general contractor. Moore was injured
During the selection of the jury Sumlin Construction used all of its peremptory challenges to have eight of the nine black persons on the jury venire stricken.1 The Moores objected to Sumlin Construction‘s peremptory challenges before the jury was empaneled and asked the trial judge to order Sumlin Construction to offer race-neutral reasons for its challenges. The court overruled the objection and denied the Moores’ request. Following the entry of judgment by the trial court, the Moores filed a motion for j.n.o.v. or, in the alternative, for a new trial, arguing, inter alia, that Sumlin Construction‘s use of its peremptory challenges raised an inference of purposeful discrimination and that the trial judge had erred by not requiring Sumlin Construction to provide race-neutral reasons for those challenges. The court denied the post-trial motion, and the Moores raise the same issue, along with several others, on appeal.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the equal protection clause of the
In Fludd v. Dykes, 863 F.2d 822, reh‘g denied, 873 F.2d 300 (11th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 201, 107 L.Ed.2d 154 (1989), the Eleventh Circuit Court of Appeals held that the Batson principle applied to civil cases. 863 F.2d at 829.2 In Thomas v. Diversified Contractors, Inc., 551 So.2d 343 (Ala.1989), this Court adopted both the reasoning and the result in Fludd, supra, and held that the Batson principle was applicable in both criminal and civil cases. 551 So.2d at 345. In Thomas the defendant was black, and the plaintiff used its peremptory challenges to strike all four black persons on the jury venire. The defendant‘s timely objection was not ruled on by the trial court. In his motion for new trial, the defendant reasserted his challenge to the plaintiff‘s use of its peremptory challenges, but the trial judge held that Batson did not apply to civil cases and denied the motion. 551 So.2d at 344-45. This Court reversed, holding that Batson did apply, and remanded that cause for an evidentiary hearing to allow the trial court to determine if the striking of the four black persons on the jury venire made out a prima facie case of purposeful discrimination, stating:
“If the trial court determines that the appellee sought to discriminate against the appellant through the use of [its] peremptory challenges, then the burden will shift to the appellee to provide a race-neutral explanation for those strikes. If no adequate race-neutral reason[s] [are] provided, then the appellant must be given a new trial.”
The facts in this case require this Court to take essentially the same action taken in Thomas, supra. Following a timely objection to Sumlin Construction‘s peremptory challenges, the trial judge, apparently
The Moores argue that Sumlin Construction‘s use of its peremptory challenges was such “blatant and callous racial discrimination” that a new trial is mandated without a prior evidentiary hearing, as justice, they argue, would not be served by simply remanding this case. We do not agree. The holdings in Batson, supra; Fludd, supra; Thomas, supra; Branch, supra; and Jackson, supra, consistently recognized that the trial court is in the best position to determine if the appellant has made a prima facie showing of purposeful discrimination, and if so, whether the appellee‘s race-neutral reasons for its challenges adequately rebut the presumption created by that showing. Batson, 476 U.S. at 100, 106 S.Ct. at 1725; Fludd, 863 F.2d at 829; Thomas, 551 So.2d at 346; Branch, 526 So.2d at 624; and Jackson, 516 So.2d at 772-73. In addition, ordering a new trial, without first giving Sumlin Construction an opportunity to explain its challenges, would be inconsistent with the due process guarantees contained in the
For the reasons stated above, this cause is remanded for proceedings consistent with this opinion. Because this appeal is left open during this remand, a copy of the circuit court‘s order granting or denying a new trial should be forwarded to this Court upon expiration of the time for appeal, if neither party appeals from that order.
REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON, SHORES and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
I dissent. I dissented in Thomas v. Diversified Contractors, Inc., 551 So.2d 343, 349-353 (Ala.1989). Judge Gee‘s dissent in Edmonson v. Leesville Concrete Co., 860 F.2d 1308 (5th Cir.1988), which I quoted with approval in my dissent, was adopted by a majority of the Court of Appeals for the Fifth Circuit when Edmonson was reheard en banc. Edmonson v. Leesville Concrete Co., 895 F.2d 218 (5th Cir.1990). Therefore, I am now even more confident that my dissent in Thomas v. Diversified Contractors, Inc. was correct.
MADDOX and ALMON, JJ., concur.