Thаddeus Donald EDMONSON, Plaintiff-Appellant, v. LEESVILLE CONCRETE COMPANY, INC., Defendant-Appellee.
No. 87-4804.
United States Court of Appeals, Fifth Circuit.
Dec. 5, 1988.
Order on Grant of Rehearing En Banc Jan. 23, 1989.
860 F.2d 1308
The appellant argues that Ricks should not control because the plaintiff in Ricks sued for denial of tenure, not termination of employment; and the denial of tenure was complete upon notification, whereas the discriminatory discharge was not complete until the employment actually terminated.2 Subsequent Supreme Court interpretation of the Ricks decision, however, clearly contradicts the appellant‘s argument. In Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam), the Supreme Court held that Ricks requires that the statute of limitations in a Title VII case begin running at the time of notification, rather than at the time of termination:
In the cases at bar, respondents were notified, when they received their letters, that a final decision had been made to terminate their appointments. The fact that they were afforded reasonable notice cannot extend the period within which suit must be filed.
Id. at 8, 102 S.Ct. at 29. Similаrly, this circuit has held that the limitations period begins to run when “the complainant knows or reasonably should know that the challenged act has occurred.” McWilliams v. Escambia County School Bd., 658 F.2d 326, 328 n. 1 (5th Cir. Unit B Oct. 1981).
In an action under
James B. Doyle, Lake Charles, La., for plaintiff-appellant.
John B. Honeycutt, Jr., Steven C. Graalmann, Percy, Smith, Wilson, Foote, Walker & Honeycutt, Alexandria, La., for defendant-appellee.
Before WISDOM, GEE and RUBIN, Circuit Judges.
The issue is whether the guarantee of equal protection of the laws forbids the exercise of peremptory challenges on racial grounds by a private litigant in the trial of a civil case in federal district court. We hold that it does, thus extending the principle announced by the Supreme Court in Batson v. Kentucky.1
I.
Injured in an accident on a construction job at Fort Polk, Louisiana, a federal enclave, Thaddeus Donald Edmonson, a 34-year-old black male, sued Leesville Concrete Company
Edmonson used all three of his peremptory challenges to excuse members of the venire who were white. Leesville challenged peremptorily two prospective jurors who were black and one who was white. Citing Batson, Edmonson asked the district court to require Leesville to articulate a neutral explanation for the manner in which it had exercised its challenges. The district court denied the request on the ground that the Batson ruling did not apply to civil proceedings, and then proceeded to impanel a jury composed of eleven white jurors and one black juror. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000, but because it found him 80% contributorily negligent, awarded him only $18,000. Edmonson seeks a new trial because of Leesville‘s alleged racial discrimination in its exercise of peremptory challenges.
II.
In Batson, the Supreme Court hеld that the equal protection clause of the
“Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.”7 After receiving the State‘s explanation, the trial court “will have the duty to determine if the defendant has established purposeful discrimination.”8
While Batson was based on the equal protection clause of the
III.
The equal protection guarantee does not forbid discrimination by private persons. As the level of interaction and cooperation between private individuals and the state rises, however, it becomes increasingly difficult to discern precisely where private conduct ends and state action begins.10 The Court has said, in Burton v. Wilmington Parking Authority,11 “[T]o fashion and apply a precise formula for recognition of state respоnsibility under the Equal Protection Clause is an ‘impossible task’ which ‘This Court has never attempted.’ Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” The criterion, the Court later stated in Moose Lodge No. 107 v. Irvis,12 is whether the government has “‘significantly involved itself with invidious discriminations.’”
In Lugar v. Edmondson Oil Co.,13 the Court formulated more precisely its inquiry into state action: “[T]he first question is whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority.” The “second question,” Lugar stated, is whether, under the facts of the case, the private persоns “may be appropriately characterized as ‘state actors.’”14 That requirement was met in Lugar because “a private party‘s joint participation with state officials ... is sufficient to characterize that party as a ‘state actor’....”15
In a number of other cases the Court has traced the line that separates private from governmental action.
Shelley v. Kraemer16 established that the equal protection clause forbids judicial enforcement of restrictive covenants based on race. Despite the fact that a restrictive covenant is a contractual arrangement between private parties, the Supreme Court held that enforcement of such private agreements by “judicial officers in their official capacities is to be regarded as action of the State.”17 Confronted by overlapping relationships between public and private actors, the Supreme Court in Shelley recognized that governmental action triggered by a private litigant retains its official character. Thus, the Court held in Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia,18 state-appointed trustees may not enforce a provision in a will setting up a school for “poor white male orрhans” by denying admission to a non-white person.
In Tulsa Professional Collection Services v. Pope,19 the Court held that the state acts when “private parties make use of state procedures with the overt, significant assistance of state officials,” as was the case when the executrix of an estate denied a claim made under a state nonclaim statute that became operative only after probate proceedings had been commenced. In that situation, the time bar was not self-executing; the “probate court is intimately involved throughout, and without that in-
In Burton v. Wilmington Parking Authority, the Court held that the exclusion of a black would-be patron from a restаurant located in a state-owned and operated parking facility was state action even though the decision to do so was made by the restaurant operator, a private concern. The state “effectively abdicate[d] its responsibilities,” the Court held, by failing to censure racial discrimination occurring on its property, a duty that the state cannot “ignor[e]” or “fail[] to discharge[,] ... whatever the motive.”21
That the statutory right to challenge jurors is exercised by a private litigant does not of itself make the action private. The government is intimately involved in the process by which a litigant challenges a prospective juror: the government summons the venire to appear in court at a particular time and place; the right to peremptory challenges is granted by a federal statute; the challenges are invoked in the course of a judicial proceeding, and on a facility operated by the government, usually in a federal courtroom or, for convenience, in the judge‘s chambers; they are not self-executing but are effected by the action of the judge; and the judge as government official acts in a court required by the Constitution to be open to the public which may thereby observe the court‘s toleration of the practice. The litigant exercises the peremptory challenge, but it is the judge, acting in a judicial capacity, who excuses the prospective juror.
Judicial oversight and administration of peremptory challеnges thus involve more judicial process and government action than the amount found sufficient by the Supreme Court in Lugar, Shelley, Tulsa Professional Collection Services, and Burton to trigger state action. The Constitution that forbids judicial enforcement of covenants based on race equally prohibits judicial enforcement of peremptory challenges so motivated. The Constitution that forbids private parties to discriminate based on race through the use of a state nonclaim statute equally prohibits private parties from so discriminating through the use of a federal peremptory challenge statute. The Constitution that forbids a private restaurant оn state-owned property to discriminate based on race equally prohibits a private party in a federal courtroom from so discriminating.
Responsible for impanelling the jury, the court, and hence, “the State[,] is not merely an observer of the discrimination, but a significant participant.... The only thing the State does not do is make the decision to discriminate. Everything else is done or supplied by the State,”23 a New York state judge observed. By presiding over jury selection in his official, governmental capacity, a judge is intimately involved in the process that Tocqueville termed America‘s “greatest advantage” in “rub[bing] off th[e] private selfishness which is the rust
Justice would indeed be blind if it failed to recognize that the federal court is employed as a vehicle for racial discrimination when peremptory challenges are used to exclude jurors because of their race. The government is inevitably and inextricably involved as an actor in the process by which a federal judge, robed in black, seated in a paneled courtroom, in front of an American flag, says to a juror, “Ms. X, you are excused.” A litigant‘s decision to provoke the court‘s action by virtue of a statutorily accorded right does not disguise the official governmental character of the procedure as a whole.
IV.
There are manifest differences between the nature of a criminal prosecution and a civil action, and the degree of governmental involvement in each. In a criminal prosecution, the government, state or federal, initiates the proceeding against an unwilling defendant. The government is the prosecutor, and the full weight of the state‘s panoply of personnel and resources is brought to bear against the accused. In a civil matter to which the state is not a party, the plaintiff initiates the proceeding and private parties are matched against each other. The state provides but the forum and the rules.
Neither the equal protection clause nor the rationale of the Batson case, however, is limited to the state‘s involvement in criminal prosecutions. The principle of equal protectiоn applies to governmental action in civil as well as criminal matters, federal as well as state.25 While the Supreme Court in Batson considered only a defendant in a criminal case, its guiding precept is that a “‘State‘s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.’”26 The “central concern of the
The Batson court‘s holding that “[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the
The peremptory challenge occupies as important a position in the trial procedure of civil as it does in the procedure of criminal cases. Racial prejudice has no more place in the federal courtroom on the days the court is conducting a civil trial than it
Three federal courts have considered the applicability of Batson to civil proceedings. Thе Eighth Circuit Court of Appeals expressed “strong doubts” that Batson is limited to criminal cases, yet left the question for another day.32 In Esposito v. Buonome,33 a district court case, Circuit Judge Meskill, sitting by designation, held that Batson was not controlling in a
A district judge in the same district court, however, reached the opposite rеsult in Clark v. City of Bridgeport,34 holding that “the equal protection analysis enunciated in Batson pertaining to use of peremptory challenges applies not only to criminal cases, but also to civil cases”35 in which a state agency is a party and an assistant city attorney exercises the peremptory challenge on behalf of a city.
If we were to limit Batson to criminal cases, we would betray Batson‘s fundamental principle: the state‘s use, toleration, and approval of peremptory challenges based on race violates the equal protection clause. We, therefore, hold that the principle announced by the Supreme Court in Batson applies to civil cases as well.
V.
As the Court observed with regard to the award of child custody in Palmore v. Sidoti,36 “it would ignore reаlity to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated.” Judges do not inhabit an ivory tower. Like others, we know that some members of any racial group acting as decision-makers in a dispute between a person of their own race and a person belonging to another race may tend to favor those who are like themselves over those who are different. This is prejudice, and that humans are prejudiced, however unworthy that emotion, cannot be denied.
In a contest, therefore, between persоns of different races, advocates may have a strategic reason to seek the discharge of veniremen of the opposing litigant‘s race. The potential pervasiveness of racial prejudice and its influence on advocates’ efforts to find a favorable audience is evinced by Edmonson himself who exercised, without objection from Leesville, all of his challenges against white jurors. The Constitution, however, condones neither the possible prejudice nor the equally racially-motivated attempt to escape presumed prejudice, which is itself a form of stеreotyping. “The Constitution cannot control such prejudices but neither can it tolerate them,” the Supreme Court stated in Palmore. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”37 If racially-motivated challenges are exercised by both parties, the remedy is not to condone them but to insist, when objection is made, that the guarantee of equal protection against all racial prejudice is enforced.
Our holding does not convert the right to exercise a peremptory challenge into a requirement that it be for cause. The peremptory challenge, as its very name
VI.
As we have noted, Edmonson established that he is a member of a cognizable racial group and that Leesville exercised peremptory challenges to remove members of his race from the venire. Leesville seeks to avoid the inference of discrimination by asserting that it did not challenge onе black person who did indeed sit on the jury. That one black person was acceptable to Leesville does not negate the possible inference that Leesville used two of its three challenges to remove black jurors because of their race in order to try its case before a jury with eleven white members.38
Whether or not Edmonson has established a prima facie case of racial discrimination, however, is a question for the district court in the first instance. The district court stated that it observed “no discrimination, no violation of the law in the selection procedure.”39 Reading this statement in context, we do not find that the district court determined, as Batson requires, whether, under the specific circumstances, Edmonson had established a prima facie case. We follow Batson‘s lead, and remand the case for further proceedings. If Edmonson should establish a prima facie case, then the district court must require Leesville to show that it had some neutral, that is, non-racial, reason for its challenges. If Leesville does not then come forward with a neutral explanation for its action, the district court shall order a new trial.
The case is REMANDED for further proceedings consistent with this opinion.
GEE, Circuit Judge, dissenting:
The sweeping result in today‘s case seems to me so unfortunate that I cannot join in it, even though the most dubious features of the majority opinion derive, not from the reasoning of my brethren, but from earlier decisions of the Supreme Court. Indeed, it may be arguable that—given those decisions—this result is unavoidable. Even so, because its effect is to impair severely the utility of a venerable and useful procedural device, for reasons that seem to me misguided, I voice a brief dissent. Long writing seems needless in any event, since it is unlikely that the Court will leave such an issue as this dangling.
The first subsidiary issue posed by the majority in the body of thе opinion is “whether the exercise of peremptory challenges by a private litigant in a civil action pending in federal court is a government action.” (Ms. op. 4). One would think that to state the issue in this manner would be to answer it: unlike the prosecutor in Batson,1 counsel in this case and his client are private parties, as are their adversaries, and the court took no part beyond permitting venire members dismissed by counsel to depart. Under the two-part test enunciated by the Court in Lugar,2 however, it would be difficult to maintain that the strikes exercised by counsel in this case did not constitute “the exercise of a right or privilege having its source in state authority.” 457 U.S. at 939, 102 S.Ct. at 2755.
It seems far more doubtful, however, that the second prong of the test is satisfied: that private counsel, striking the venire in a civil case, is a “state actor.” Ibid. Indeed, if a public defender employed by
In Batson, the state actor was the prosecuting attorney, the very embodiment of the state, exercising its power and acting in its interest in all respects. In today‘s case, no such figure is to be found: only private counsel, who holds no state post, and the trial judge, who took no action of any significance. I would not find state action here.
Nor can I agree that exercising strikes in a given case along ethnic lines necessarily involves or gives the appearance of involving derogatory racial views, as does the attempt to exclude black jurors generаlly from the venire. As Judge Garwood explained for our en banc Court, in a celebrated passage quoted by then Chief Justice Burger in his Batson dissent:
“Exclusion from the venire summons process implies that the government (usually the legislative or judicial branch) ... has made the general determination that those excluded are unfit to try any case. Exercise of the peremptory challenge, by contrast, represents the discrete decision, made by one of two or more opposed litigants in the trial phase of our adversary system of justice, that the challenged venireperson will likely be more unfavorable tо that litigant in that particular case than others on the same venire.
“Thus, excluding a particular cognizable group from all venire pools is stigmatizing and discriminatory in several interrelated ways that the peremptory challenge is not. The former singles out the excluded group, while individuals of all groups are equally subject to peremptory challenge on any basis, including their group affiliation. Further, venire-pool exclusion bespeaks a priori across-the-board unfitness, while peremptory-strike exclusion merely suggests potential partiality in a particular isolated case. Exclusion frоm venires focuses on the inherent attributes of the excluded group and infers its inferiority, but the peremptory does not. To suggest that a particular race is unfit to judge in any case necessarily is racially insulting. To suggest that each race may have its own special concerns, or even may tend to favor its own, is not.”
United States v. Leslie, 783 F.2d 541, 554 (5th Cir.1986) (en banc), quoted at 476 U.S. 79, 122-23, 106 S.Ct. 1712, 1736-37, 90 L.Ed.2d 69 (1986).
Finally, I am unable to avoid the conclusion that first the Supreme Court, with its decision in Batson, and now our panel, with today‘s case, have leapt halfway across a logical chasm and come to rest in midair. The essence of a peremptory challenge is that it need not be exсused or justified; indeed, the challenger himself may have no articulable reason for his action. Every lawyer who has tried cases for any length of time knows this, would be forced to
What remains after today‘s holding is not the peremptory challenge which our procedure has known for decades—or not one which can be freely exercised against all jurors in all cases, at any rate. Justice Marshall would dispense with strikes entirely, and perhaps this will be the final outcome. Batson, 476 U.S. at 106-08, 106 S.Ct. at 1728-29 (Marshall, J., concurring). In this much at least he is surely correct, that we must go on or backward; to stay here is to rest content with a strange procedural creature indeed: a challenge for semi-cause, exercisable differentially as to jurors depending on how the ethnic group to which they belong correlates with that of the striker‘s client—a skewed and curious device, exercisable without giving reasons in some cases but not in others, all depending on race.
ON SUGGESTION FOR REHEARING EN BANC
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, and DUHE, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the suggestion for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.