*1
Mich 330
486
SYSTEM
PELLEGRINO v AMPCO
PARKING
(Calendar
4).
9,
Argued March
No.
Decided
Docket No. 137111.
June
2010.
Anthony Pellegrino, individually
personal representative
and as the
wife, Shirley Pellegrino, brought
third-party
deceased
a
of his
Wayne
against Ampco System
in
no-fault action
Circuit Court
Parking
Shirley Pellegrino
Anthony Pellegrino
after
killed and
was
injured
involving
airport
in an accident
an
shuttle van
was
Liability
conceded,
operated
and the
defendant.
was
case
dire,
damages.
proceeded
trial
on the issue of
Before voir
court,
Callahan, J.,
goal
Michael James
indicated the court’s
of
having jury
represented
composition Wayne
the racial
of
dire,
County. During
sought
voir
to use a
defendant’s counsel
peremptory challenge
juror
prospective
to dismiss a
who was
African-American,
plaintiffs’
pe-
and
counsel asserted that the
challenge
Kentucky,
remptory
violated the rule of Batson v
476 US
(1986),prohibiting
peremptory challenges
the exercise of
already challenged
basis of race because
counsel had
defendant’s
prospective jurors
argued
two
on that basis. Defendant’s counsel
juror
prospective
that he wanted to excuse the
because she had
grieving
been
was
her
death.
widowed twice and
mother’s
Defen-
2.511(F),
argued
prohibits
dant’s counsel also
that MCR
which
dire,
during
supported
peremp-
discrimination
voir
his
use
tory challenges.
making
findings concerning
Without
whether
plaintiffs
grounds
denying
had
established
for
use of
peremptory challenge,
challenged
the court denied it and the
jury unanimously
veniremember served on the
The
awarded
motion,
plaintiffs
posttrial
a verdict
In a
$14.9
million.
defen-
again
by denying
dant’s counsel
asserted that the court had erred
peremptory challenge, alleging
a failure to follow Batson or
2.511(F)
requesting
Appeals,
and
a new trial. The Court of
(O’Connell, RJ., concurring part
and
JJ.
Borrello
Gleicher,
dissenting
part),
unpublished opinion per
affirmed in an
cu-
(Docket
riam,
May 27,
274743), concluding
issued
No.
although
procedures,
the trial court had not followedthe Batson
only
no constitutional error occurred because such an error occurs
is excused on the
when
basis
Thus,
included on that basis.
the trial court’s denial of the use of
Parking
Ampco Sys
subject
single peremptory
was
to a harmless-error
analysis,
Appeals
that the error
and the Court
concluded
only
damages
in the trial was
fact harmless because the
issue
Appeals
the verdict was unanimous. The Court of
further con-
2.511(F)(2).
had
The
cluded that the trial court
not violated MCR
*2
Supreme
granted
appeal,
defendant leave to
limited to
Court
entitled to a new trial on
consideration whether defendant was
2.511(F)(2).
(2009).
the basis of a violation of MCR
prospective jurors, not the exclusion of race, particular juror purposeful The inclusion of a on account of necessarily implies the exclusion of another individual from which jury, also offends the constitution and violates MCR 2.511(F)(2). requires 4. A Batson violation automatic reversal for because of without unlawful exclusion of requiring The an assessment of the harmlessness of the violation. juror. applies same rule to the unlawful inclusion of a simple good-faith 5. The error in this case did not involve a Rather, deliberately mistake. the trial court refused to follow the rejected procedure purposely a court rule. Batson require The trial court’s comments and case 6. actions this judge supply a retrial before a different and could a basis for the investigate judicial Judicial Tenure Commission to mis- whether conduct occurred should the commission choose to do so. Reversed and remanded for retrial. joined by dissenting, Justice Justice would Weaver, Hathaway, appeal reverse remand because she believed leave to improvidently granted was in this case. Justice Weaver was not persuaded Appeals clearly that the decision of the Court of injustice. erroneous or that defendant suffered She further did *3 support majority’s regarding possible not discussion referral judge to the Tenure Judicial Commission. trial Challenges — —Batson vAEwrucin Violations
Jury Peremptory Racially — Based Inclusion Jurors. jurors in, particular particular Decisions to include or exclude from, prospective jurors a must be undertaken without race; jurors pursuant consideration of must he selected to criteria account, that do not take race into with each chosen indifferently respect race; may deny with trial court party’s basis of considerations of race a use of a balanced, challenge to achieve what the court believes to be a (US proportionate, representative jury Const, 1;§ Am XIV 2.511[F][2]). 1963, 1, 2;§ art Const Giroux, Fieger, Fieger, Kenney, (by Johnson & PC Giroux, Geoffrey Jr., N. and Feiger, Robert M. Heather A. Jefferson), for plaintiffs. Diemer, (by
Jacobs and P.C. John P. and Jacobs Diemer), Timothy A. for defendant. Ampco Sys Parking Opinion of the Court
Amici Curiae:
Candace A. T. Flood Crowley for Clifford State Bar of Michigan. Brenner) (by Michigan
Clark Hill PLC James for E. Defense Trial Counsel. Cox, General, Restuccia, Attorney
Michael A. B. Eric General, Levy, Special Solicitor and Daniel M. Assistant General, Attorney Rights for the Civil Commission the Department Rights. of Civil whether, J. This case raises the question
Markman, a finding absent that a peremptory challenge is barred 1712; Batson v L Kentucky, US 106 S Ct (1986), Ed 2d by race, because it is motivated a trial may court deny nevertheless party use of peremptory challenge on the basis of the court’s desire racially to attain a proportionate jury. We hold that such a denial jurors violates the rule of Batson that must be “indifferently chosen” and is therefore violation of both the equal protection guarantees of the federal and constitutions, state Const, Xiy § US Am 1 and Const 2.511(F)(2). 2,§ 1963 art and MCR Decisions to include, exclude, and to particular jurors must be un- dertaken without Accordingly, consideration of race. we contrary reverse the judgment of the Court of Appeals and remand for a new trial on the damages only. issue of history
I. FACTS and
7, 2003,
wife,
On April
Anthony Pellegrino and his
Shirley,
riding
were
in an airport
operated
shuttle van
*4
defendant,
System
Ampco
Parking, when the van
swerved on ice and hit a
barrier. Shirley
concrete
was
killed, and Anthony
injuries.
per-
sustained serious
As
Opinion of individually estate and representative Shirley’s sonal of behalf, filed a no-fault Anthony third-party on his own defendant, liability, which conceded leav- against action ing only question damages. for trial of dire,
Before voir the trial court instructed the attor- “it of neys goal [the court] that would be have represented county.” the racial of this dire, sought at voir defense counsel Subsequently Greene, juror Sylvia an peremptorily excuse woman, plaintiffs’ African-American and counsel raised Batson, objection alleging an based on that defense already peremptorily challenged pro- counsel had two on the race. In spective jurors response, basis of defense counsel that he to excuse argued wanted Greene be- cause she had been widowed two times and in the process of over the death her grieving mother. With- making any finding out about coun- plaintiffs’ whether sel had established for grounds denying challenge, it, the trial court denied and re- Greene mained on the jury. 2.511(F),* invoking
After MCR 2defense counsel as serted that he had supplied legitimate nonracial rationale for his and peremptory challenges argued 2.511(F) taking during race MCR forbids into account voir dire for the purpose achieving balanced, propor what the court be a believes to tionate, representative provides: or (1) person subjected during No shall be to discrimination voir race, color, religion, origin,
dire on the basis of national or sex. (2) race, color, during Discrimination voir dire basis of religion, origin, purpose achieving national or sex for the what balanced, proportionate, representa- the court believes to be a tive in terms of these characteristics shall not constitute an justification excuse or for a violation of this subsection. 2.511(F) 1,2006, January applied became effective therefore the instant trial. *5 Ampco Sys Parking Opinion of the Court plaintiffs’ Batson herring” issue was a “red and unsup He then ported. advised the trial court that he intended to file motion either to remove Greene or for a mistrial, to which the trial court responded: “We have a jury of eight women. Three are In African-American. view, my it adequately represents community from which this case arises.” In a verdict, unanimous the six jurors who deliberated eventually awarded mil $14.9 lion to plaintiffs. again objected
Defense counsel to the court’s denial of his peremptory posttrial motion and requested a new trial. He argued that the trial court had failed to follow procedures, that, Batson stating although it is an “emulative approach” to want “equaliz[e] jurors Wayne because of the County prob- amassing lems of enough minority jurors,” it is “not the law.” Defense counsel also asserted that MCR 2.511(F)(2) superseded the court’s own view of its obligations in juries. the selection of
In denying motion, the trial rejected court notion objection that an based on Batson could only be showing sustained on a considerations, racial assert- ing that “the federal threshold is dreadful and it ren- ders nugatory the challenge.” Batson indicating After further it did not think defense counsel was “racist” or should be “racism,” accused of the trial court stated: you record,
... I may told get and this me into hot Appeals Court, [the] water with I won’t find it. I will not do that. I
... have six my African American children of own. I going indulge am not baiting in the race that that kind opinion of an finding require that kind of would of me. Mich 330 Opinion of the Court point that the whole interjected counsel then Defense jurors is to excuse challenges legal disqualification they do not meet though even contin- 2.511(D), and the trial court standards of ued: hot water with the guess [in] I I’m sufficient
Well indulge in ... say going I’m not to ... appellate courts to way, rules that baiting if the race .... Now do, they then I’ll have to suspect they would not but if I judge any longer. I function as a decide whether can *6 that it understood that the trial court stated Finally, defense counsel was However, challenge.
focusing upon the of the Batson intent county competing in interests. There is no other there are composition Michigan with as diverse racial the state of Wayne County.... from the
... I until either removed bench am trial, I am disciplinary committee or ordered to have a new proportional representation going to to have this on seek I juries that hear cases this court. can’t be clearer. going to it until I’m ordered not to do it and then I’m do it, then I’ll to decide when I’m ordered not to do have what’s next for me. raising appealed Appeals,
Defendant the Court issues, denial its including host of the trial court’s in a challenge, and that Court affirmed Sys Parking, unpub- v split Pellegrino Ampco decision. Appeals, curiam of the Court of opinion per lished (Docket 274743). majority The May issued No. court had not followed although concluded that trial occurred no constitutional error procedures, Batson only such an error occurs when because than on the basis of rather excused Ampco Sys Parking Opinion of the Court Thus, included on that basis. majority opined, trial merely court had denied defendant the use of a single peremptory challenge, which was subject to harmless-error analysis. The majority then concluded was, fact, the error only harmless because the issue at trial had been damages and the verdict had been Finally, unanimous. the majority asserted that 2.511(F)(2) MCR had not been violated:
To the extent
racially
the trial court desired a
jury,
balanced
such a desire does not run afoul of MCR
2.511(F)(2).
2.115(F)(2)
prohibits
[sic]
“[discrimina-
during
race[,]”
tion
voir dire on the basis of
and we cannot
conceive how the trial
racially
court’s desire to have a
possibly
balanced
could
be characterized as “discrimi-
2.115(F)(2) [sic],
nation” under MCR
[Id. at 9.]
O’CONNELL,
Judge
dissent,
in partial
stated:
The trial court’s refusal to follow the law was not
During jury selection,
confined to Batson.
defendant’s
brought
counsel also
to the trial court’s attention a Michi
gan Supreme
regarding
Court order
ultimately
what
be
2.511(F).
came MCR
Our
already
Court had
[People Knight,
stated in
v]
[473 Mich
disciplinary trial, committee or ordered to have a new I am going to proportional representation seek to have this on MICH 330 486 338 Opinion op the Court this court. I can’t be clearer. juries hear cases in and then I’m not to do it going do it until ordered I’m it, decide I’ll have to not to do then when I’m ordered me.” next for what’s that he refuses to judge to state on the record
For a trial do so unless removed will continue to follow the law and proceed- imply prejudice in the does more than from office ground for reversal ings, I can think of no it admits them. than that. more clear
3 with the United States This statement is consistent proxy for ruling “[r]ace cannot be a Court’s Ohio, competence.” Powers v determining juror bias or (1991). 400, 410; 1364; 113 L Ed 2d US 111 S Ct may jurors be made based on Decisions about notwithstanding. good intentions PJ., concurring part and dissent- [Id. at 5-6 (O’Connell, ing part).] leave to granted and this Court appealed, Defendant the defendant “limited to the issue whether appeal, on a violation of MCR entitled to a new trial based (2009). 2.511(F)(2).” Mich 999
II. STANDARD OF REVIEW
de novo. Sidun
questions
We review constitutional
503, 508;
Treasurer, 481 Mich
In a civil 2.511(E)(2). 1986, a Before lenge jurors.” three a prospective remove peremptorily was free to party *8 Ampco Sys Parking 339 v Opinion the juror Batson, for reason. But in 89, 96-98, 476 US at the United States Supreme Court held that a prosecu tor’s peremptory challenge to strike a prospective juror may not be exercised on the basis of race because such an action violates the Equal Protection Clause of the Fourteenth Amendment.2 year, Later that the Court expanded Batson to civil cases. Edmonson v Leesville Co, Inc, Concrete 614; 2077; 500 US 111 S Ct 114 L Ed (1991).3 2d 660
The United States Supreme Court has reinforced
Batson on
1991,
several occasions. In
the Court held
that a defendant could raise a Batson issue
if
even
the
juror
excused
was not the same race as the defendant.
Ohio,
Powers
400,
v
415;
US
S Ct
113 L
(1991).4
Ed 2d 411
Then, in
McCollum,
v
Georgia
42, 59;
US
criminal defendants. *9 on the basis of challenges peremptory Batson to panded 127, 146; 114 Alabama, S Ct E B v 511 US J gender. (1994). 1419; L Ed 2d 89 128 Batson, addressing opinions This Court has also issued (F). Bell, In v 473 People MCR 2.511 enacting as as well 5 (2005), 275; 128 the trial court denied Mich 702 NW2d to strike two white peremptorily defense counsel’s efforts several already counsel had struck males after defense claim response prosecutor’s males. In to other white in such inference of discrimination that there was an “ number of challenges, argued: ‘[T]he defense counsel still exceeds the number of the panel white males on that talk about the Why you that don’t panel. minorities on of that There’s still a vast composition panel? whole racial members on that than... black majority panel of white ” Id. at 289. This Court con panel.’ members on that the trial court had denied defense properly cluded that challenges “|j]ust and added that peremptoiy counsel’s juror on the may not exclude a challenger challenger it is for a to equally improper basis of of a to reflect the race of the engineer defendant.” Id. at 290. Mich Knight,
In v NW2d People (2005), day, objected decided the same defense counsel using challenges prosecutor that hearing African-Americans from the After exclude the trial court challenges, reasons for his prosecutor’s said: duty are under an affirmative to enforce the
the Constitution. The courts prohibi- strong statutory policies that and constitutional embodied in Powers, at 416. tion.” 499 US Only through producing opinions. parts III case five I Bell was divided opinion garnered majority support. Justice WEAVER of the lead Bell Taylor concurred, part then Justice dissented concurred Chief Kelly dissented, separately part, and Justice also Cavanagh then Justice dissented. Ampco Sys Parking Opinion minority jurors
“[T]wo or three panel. [are] left on this getting So I think we are close a serious issue here.” getting “... I think we’re close to a sensitive issue here [prospective jurors] on Jones and Johnson....” panel with, up
“With the we ended I think that problems may Batson have been there have been deleted).] (emphasis [Id. cured.” at 331-334 appeal Court, On in this in the course of explaining the trial had never found a Batson violation, court we stated: susceptible
T]he record is to the fair inference that the *10 judge preserve trial presence minority jurors acted to panel, knowing jury pool, that as a matter of chance, largely Protecting was Caucasian. a defendant’s right impartial jury to a fair and ensuring does not entail any particular composition jury.... racial [judge’s]
[T]he comments demonstrate that her true mo tivation was to ensure some modicum of racial balance in the jury panel. peremptory challenges, however, Use of to ensure proportionality jury prohibited by racial in the is Batson and 6.412(F)[6] prohibited by be proposed will adopted. MCR if judge recognize The trial failed to that a defendant is particular not entitled to of a racial as long group systematically as no intentionally racial and [Id. excluded. at 348-351. proposed eventually incorporated The court rule was as MCR
2.511(F) 6.412(F). rather than MCR Mich
Opinion of the Court KELLY and by then Justice joined Justice CAVANAGH, in and dis- part Justice concurred then Chief TAYLOR, Justice CAVANAGH concluded Although sented in part. violation, found a Batson the trial court had “I here, agree tend to with relevant he stated: that some of the trial court’s majority suspect to ensure stemmed from its desire arguably statements prohibited and that such a desire is racially mixed (CAVANAGH, J., Id. progeny.” Batson and its at end, In the dissenting part). concurring part a trial agreed prohibited all that Batson justices seven acting presence minority preserve court from to ensure a jurors jury panel on a because of desire racially mixed
IV APPLICATION Plaintiffs that the trial court’s refusal to allow argue peremptory challenge pro- defendant to exercise a juror Greene consistent with the constitu- spective was merely tion and court rules because the trial court was a “fair seeking jury represented to ensure community.” reject argu- cross-section of the We this ment because the trial court’s actions violated the requirements race-neutral of both the constitution and 2.511(F)(2). Greene’s retention on the predicated on her as well as the races of other jurors; para- each of these racial considerations was to reject mount the decision of the trial court 2.511(F)(2) challenge. defendant’s As MCR “balanced, *11 a court’s desire to achieve a explicit, makes jury” justify does not proportionate, representative in selecting race into consideration Not- taking withstanding express prohibition, this the trial court its decisions on its determina- premised jury-selection representation” tion to based on “proportional secure Ampco Sys Parking v 343 Opinion op the Court racial the in which county the trial In denying occurred. defendant’s peremptory challenge, expressly the court took Greene’s race into account and expressly evaluated her race in of the race light every other on the panel. It is hard to conceive of a more flagrant unambiguous the violation of court rule. 2.511(F)(2) Moreover, the prohibition found in MCR altogether with, consistent and indeed premised on, our federal constitutions,7 and state as well as United Supreme States Court and Michigan Supreme Court precedents.8 These demonstrate that a purpose or mo- tive of attaining racially balanced does not the trial provide court with authority to deprive a party of a proper peremptory challenge.
In Taylor Louisiana, 522, 419 538; US 95 S Ct 42 L Ed (1975), 2d 690 the United States Court held that defendants are not entitled to a any particular composition: holding “[I]n that petit juries [trial] must be drawn from fairly a source repre sentative of the community impose we no requirement petit juries actually chosen must mirror the com munity and reflect the various groups distinctive in the population.”9 And in McCree, Lockhart v 162, 476 US XIV, Const, provides: § any deny US Am “[N]or shall State... person... equal protection Indeed, 1, 2, § of the laws.” Const art counterpart Amendment, unlike its federal contained in the Fourteenth explicitly prohibits person discrimination on the basis of race: “No shall be race____” equal protection denied the of the laws ... because of... opposed Justices adoption Cavanagh, and Weaver of MCR Kelly, 2.511(F) because, reasons, among rule, view, other in their “unnecessary” already and added “no substantive value to the case law ccxli, J., dissenting). justice existence.” 474 Mich ccxliii (Kelly, No questioned consistency of the court rule with the federal or state constitutions or with federal or state caselaw. Batson, explained As earlier “[I]t US at 86 n 6: would he impossible apply concept proportional representation petit to the heterogeneous society.” view of the See also United nature of our *12 330 486 MICH
344 op Opinion the Court (1986), the United 1758; L Ed 2d 137 173; S Ct 90 106 never in “We have Court observed: States invalidate the to principle the fair-cross-section voked challenges to peremptory for-cause or use of either as petit juries, opposed or to jurors, require venires, composition to reflect the panels or jury in Holland v large.”10 Subsequently, community the at 2d 474, 480; Ct 107 L Ed Illinois, 493 US 110 S re (1990), held that the fair-cross-section the Court interpreted prohibiting pe be quirement cannot Amendment “[The] Sixth challenges, stating: remptory community] [of of a fair cross section requirement not a assuring, representa on the venire is a means of (which demand), not but tive the Constitution does jury does).” (which one it impartial an Thus, the trial court did not determine that given that motivated, racially defendant’s have the racial the court’s stated desire to did community” “representative be challenge. the court’s denial of that justify or authorize the trial court’s denial of fundamentally, Even more peremptory challenge defendant’s violated consti- forth in Batson: principles tutional set (CA Jackman, 1240, 2, 1995), States v which held that 46 F3d opportunity representative “guarantees Amendment for a Sixth (Second added.) representative venire, emphasis venire itself.” not a (CA 2002), Nelson, 2, v See United States 277 F3d which juror, juror replaced another black the trial court an excused black with alternate, replaced and at the same time rather than the white first juror, empanelled rehgious-minority a white another white with justified The court its also selected out of order from the list of alternates. racially religiously balanced actions reference to desire for response, Appeals Id. In the United States Court of for the Second Circuit “[Although the district courts race- and stated: the motives behind undoubtedly religion-based procedures meant to be selection were exclusionary, bigoted than fact tolerant and inclusive rather race-conscious actions.” Id. at 207. justify cannot the district court’s Ampco Sys Parking Opinion of the Court right by jury [T]he defendant does have the to be tried pursuant whose members are selected non- discriminatory criteria... .
. . . “indifferently Those on the venire must be chosen” right to secure the defendant’s under the Fourteenth Amendment.... *13 jury
The
discriminatory
harm from
selection extends
beyond that
inflicted on the defendant and the excluded
juror
[Batson,
community.
to touch the entire
The trial court’s refusal to allow defendant to strike prospective juror Greene without finding any Batson violation led to at least one member of the jury having selected, been not pursuant to nondiscriminatory crite- ria, but precisely on the basis of race. presence Greene’s on was thus the result not of being “indiffer- chosen,” ently as required by Batson, but having of been chosen specifically on the basis of race. As asserted Batson, in this inflicts defendant, harm on prospective juror who was excluded because of Greene’s retention, and indeed on the “entire community.” The trial court’s process transformed the group from a of mere citizens a into in which group person’s racial background became defining, and it transformed the selection process from one that was neutral in terms of race into one that predicated on race. While this may process be the preferred by court, the trial it is not the process by set forth the federal or state constitu- tions or federal or Powers, state law. As in stated US at 415: “The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is compelling most in the judicial system.” Quite simply, in the absence of a violation, Batson the trial right court had no to take Mich 330 Opinion of juror’s race into prospective other Greene’s challenge. denying defendant’s account to be so, did the selection of the ceased When it race, instead became preoccupied indifferent but race. with concluded that no Batson error Appeals
The Court of
only
error occurs
when a
occurred because a Batson
on
of
prospective juror
actually
dismissed
account
disagree. While Batson violations
respectfully
race. We
a prospective
have
involved the exclusion of
typically
principles
on the basis of
the constitutional
articulated in Batson are not so limited. Batson and its
in terms of the
progeny generally speak
prohibition
involving prospective jurors,
“discrimination”
jurors
the exclusion of
on the basis
merely
See,
Powers,
at
e.g.,
(“Although
of race.
499 US
right
‘petit jury composed
defendant has no
to a
or in
part
persons
[the defendant’s]
whole
own
race,’
right
by jury
he or she does have the
to be tried
by nondiscriminatory
whose members are selected
cri-
(citation omitted).
teria.”)
Furthermore,
stressing
*14
person
intentionally
that no
should
be excluded on
race,
support
account of
these cases
the conclusion that
the
a
on
purposeful
particular juror
inclusion of
account
by
of race —which
its
the
logic necessarily implies
exclusion of another
in the “zero sum” pro-
individual
that
selection —also
jury
cess
characterizes
offends
(“The
See, e.g., Knight,
constitution.
In wrongful juror we find that the inclusion of a on account of race should be treated the same as the wrongful exclusion of a on account of race. Each situation violates the constitutional com- jurors mand that be pursuant selected criteria account, deprives do not take race into each a defendant “indifferently of a has been chosen” in terms of judicial power each involves the exercise of a race support process disposi- which becomes *15 486 MICH 330 Opinion of the Court tive in terms of who can serve on a each Finally, situation violates plain language the of MCR 2.511(F)(2).
V REMEDY concluded, The Court of Appeals majority and plain- argue, tiffs error here was again harmless. We Batson, In respectfully disagree. 86-87, 476 US at held, without determining that the as com- posed any way, was biased in that the unlawful exclu- sion of a prospective juror on the basis of race requires reversal because it “violates a right defendant’s to equal protection,” “unconstitutionally against discriminate[s] the excluded juror,” and public “undermine[s] confi- dence the fairness of our system justice.” The Court likewise reversed convictions or judgments out- right, without assessing the harmlessness of the Batson violations, Powers, 416; 499 US at Edmonson, 500 US B, at and J E Here, US at 146. the trial court’s efforts to balance the of a violated Batson because these efforts entailed taking race into including, and necessarily excluding, with re- account — gard jury duty, persons on the their pigmen- basis of tation.11 We believe that the automatic reversal rule Batson should also apply when there has been an unlawful inclusion of a juror as the result of a Batson violation by the trial court.12Such a rule vindicates the 2.511(E)(1) juror peremptorily challenged “A states: is excused added.) (Emphasis phrase without mandatory cause.” The “is excused” is language, discretionary permissive Thus, language. absent a violation, deny Batson a trial party court has no discretion to peremptory challenges thereby deny exercise of one of its party right person to have seated on his or her who stands jury queue. next in the improper Bell discussed whether denial of subject analysis. opinion to harmless-error The lead Sys Parking Ampco Opinion of the Court *16 States of the United guarantees equal protection 1963, 1, 2,§ Constitution, XIY( § 1 and Const art Am infected in selection is not ensuring that while by racial considerations.13 any way trial erred that, even if the court argue Plaintiffs also any er- peremptory challenge, defendant’s by denying dimension, citing of a federal constitutional ror was not 1446; 173 L Ed Illinois, 556 US 129 S Ct Rivera v (2009). Rivera, In the United States 2d 320 stated: jury composed qualified tried before a If a defendant is cause, challengeable for the loss of a of individuals not good-faith challenge peremptory due to a state court’s of federal constitutional concern. error is not a matter Rather, under its own is matter for the State to address it laws. challenge improper peremptory denial of a stated in dictum that the Bell, subject analysis. Mich at than to that on a basis other race is J.). by Corrigan, argued (opinion in her dissent that Kelly Justice peremp- wrongful should occur for the denial of a automatic reversal tory challenge, Batson error. Id. at even if it does not constitute a Cavanagh (Kelly, J., dissenting). Justice dissented on similar 312-313 (Cavanagh, J., dissenting). grounds. not be Id. at 322 This debate need was, fact, today wrongful because here the denial further addressed Illinois, 148, 158-162; See, however, US
based on race.
Rivera v
(2009)
1454-1456;
(unanimously
... is no judge here that the trial repeatedly deliberately misapplied or the law or acted in an arbitrary or irrational ... manner. ' precedents The automatic reversal Rivera cites are
inapposite. One set of cases involves constitutional errors
concerning
qualification
judge. Batson,
In
*17
example,
for
we held that
jurors
the unlawful exclusion of
requires
based on race
reversal because it “violates a
right
equal protection,”
defendant’s
“unconstitutionally
against
juror,”
discriminate[s]
the excluded
and “under-
public
[s]
mine
confidence in the
system
fairness of our
justice.” ...
Nothing
. ..
suggests
in these decisions
that federal law
judgments
renders state-court
void whenever there is a
state-law
in
composition.
defect
a tribunal’s
Absent a
violation,
federal constitutional
preroga-
States retain the
deprive
tive to decide whether such errors
a tribunal of its
authority
lawful
require
and thus
automatic reversal.
decide,
States
law,
are free to
as a matter of state
that a
trial
court’s mistaken denial of
a
is
per
reversible error
[Id.
se.
at 157-162.]
Rivera
inapplicable.
Rivera,
In
the Court held that
a state
“one-time,
court’s
good-faith”
in
error
disallow-
ing a peremptory challenge did not “without more”
require
158-160;
reversal. Id. at
In
the trial
this
racially “representative”
determined to attain
representation”
“proportional
on the basis
notwithstanding explicit prohibitions in the
con-
law
racially
pursuit
represen-
cerning
of a
discrimination
representation
proportional
on
basis
tative
(b)
engage in the
he
race;
indicated that would
compelled
baiting”
he believed was
sort of “race
might get
thought
him in “hot water”
this
law even
(c)
appellate courts;
that he viewed
indicated
with the
judi-
requirement
aof
Batson’s threshold
as “dreadful”
*18
motivating
peremptory
finding
racial
a
cial
of
bias
require-
dispensing
challenge
with that
in the course of
challenges
question
peremptory
are not constitu
There is no
proposition
that Rivera
tionally required.
agree
stands for the
And we
without
good-faith
denial of a
that a
erroneous
impartial
right
implicate
to an
the federal constitutional
more does not
implica
in Rivera However,
significant
the
perhaps
what is
most
are,
fact,
require “automatic”
that Batson errors
“structural”
tion
reversal.
486 MICH330
Opinion
ment and
denying
peremptory challenge to which
(d)
law;
defendant
entitled by
was otherwise
indicated
that if his
the law did
view of
view that
prevail —a
recognized
being
he
contrary
to the law this state
and that he
to
case—he
proceeded
apply
this
would
“have to decide whether
can function as a judge
[he]
(e)
indicated
would
longer;”
that he
continue to
law,
apply his own
view of
rather than
personal
state,
until
law this
“either removed from the bench
by
disciplinary
committee or
to
ordered
have a new
(f)
trial;” and
indicated that
until
disciplinary
either
removed from the bench
trial,
committee
to
going
or ordered
have a
I am
new
to
proportional
representation
juries
seek to have this
that hear
this
I
going
cases in
court.
can’t be clearer. I’m
do it until
I’m ordered not
to do it and then when I’m
it,
ordered
then
not to do
I’ll have to decide what’s next for me.
comments,
These
and the
judge’s
trial
attendant
actions taken in
conformity
denying defendant’s
peremptory challenge, establish a basis for concluding
this- is the unusual case in which retrial should
Moreover,
occur
judge.
before a different
we believe that
these same comments and actions could
supply
basis
for the Judicial Tenure
investigate
Commission to
whether
judicial misconduct has occurred should it
choose to
Michigan
do so.15
has
hierarchical
judicial
system, and trial courts are
required
appli
follow
good
While a trial court’s “erroneous decision ... made in
faith and
judicial
diligence
misconduct,”
9.203(B),
with due
is not
an inten
judicial
tional refusal to
the law
follow
or a court rule can be
misconduct.
See, e.g.,
532, 547-554;
Hague,
(1982),
In re
412 Mich
orders forbade him to
and did so
The record reveals
*19
Parking
Ampco Sys
Opinion
the Court
of
by appellate
rules, orders, and caselaw established
cable
Court.
the United States
courts,
including
uniform, and
orderly,
to the
This structure is essential
not free
A trial court is
justice.
administration
equal
it
with which
rules, orders, and caselaw
disregard
to
a trial
Although
itself.
to
a law unto
disagrees or
become
rules,
agree
appellate
to
with
required
court
is not
all other
and
orders,
caselaw,
litigants
as with
and
law,
is
the court
with
seeking
comply
citizens
orders, and
rules,
to follow those
faith
required
good
required
are
persons,
all other
like
Judges,
caselaw.16
attempt
obey
good-faith
respondent made no serious
that the
courts,
superior
the circuit court or
either
orders from
the various
Appeals....
the Court of
integrity
public
of the
confidence in the
The maintenance of
Hague
appearance of
judiciary required Judge
to avoid even
judicial orders....
of valid
defiance
that,
case, Judge
beyond peradventure
in this
It seems clear
judi-
Hague’s
disobedience of valid orders constitutes
intentional
impartiality
integrity
in the
and
cial misconduct. Public confidence
judge
only
by
spectacle
judiciary
of a
can
be eroded
of the
refusing to follow the law....
authority
may disagree
appellate
judge
A
who
with
...
nevertheless,
opinion
validity
must,
lay
of the
him in accordance with the
his own
aside
dispose
of the cases before
law and
precedent.
jurisdiction
by
proper
must be
a court
An order entered
with
clearly
Bar Mich v
obeyed
incorrect. State
if the order
—even
(1976) (“[A]n
Cramer,
116, 125;
order issued
399 Mich
249 NW2d
person
subject
must be
jurisdiction
matter and
over the
a court with
by orderly
proper
obeyed by
parties
reversed
until
it is
(citations
omitted); City Troy v
quotation marks
proceedings.”)
to act within the law. This is the essence of the rule of law, and this is the essence of the equal rule of the law. These are obligations that apply equally to this Court with regard to the federal decisions of the United States Supreme Court and to our Court of *20 Appeals.17
VII. CONCLUSION
A trial
may
court
not deny a party a proper peremp-
tory
“for
the purpose of achieving what the
court believes to be a balanced, proportionate,
rep-
or.
2.511(F)(2).
resentative
. . . .” MCR
Rather, jurors
must be selected pursuant
to criteria that do not take
race into consideration, with each juror being chosen
indifferently with respect
to race. Whether
for the
purpose of including or excluding a particular
juror,
taking race into account violates the equal protection
guarantees of both the federal and
constitutions,
state
Const,
US
Am XTV(§
1963,
1 and
Const
art
2,§
and
2.511(F)(2).
The judgment of the Court of Appeals
reversed,
and this case is remanded for a new trial on
damages only before a different judge.
Holcomb,
163, 169;
(1961) (“No
362 Mich
citizen,
Stein &
478 Mich
Kelly, C.J., Cavanagh, Markman, concurred with J.
Weaver, I I would not reverse (dissenting). J. dissent. I believe that leave to and remand this case because I am not granted. persuaded appeal improvidently was clearly Appeals the decision of the Court of any injustice or that defendant has suffered erroneous in this case.
Further, majority’s I discussion support do referral the trial to the regarding possible judge Judicial Tenure Commission.
Hathaway, J., Weaver, concurred with J.