*1 mass, brought to his at- nevertheless was Surely, by his own examination.

tention requiring patient to only reason' for previously mis-

complain about the area bring

diagnosed is to it to the attention .inquiry physician. key must be notice, physician put was on

whether patient or her-

through the actions of her

self, condition existed. that an abnormal certainly possessed

Dr. Bellomo

knowledge. physician’s diagnosis nothing

A fur- necessary does not end “treatment”

ther given physician subsequently

if the no- time that the initial

tice within a reasonable

diagnosis wrong. Treatment omis- if the

sion can toll the statute of limitations

subsequent misdiagnosis occurred within diagnosis, time after the initial

reasonable continuing relationship

and there was a physician patient. and the

between majority respectfully

I dissent from the a continu-

opinion on the issue of whether existed, of treatment so as to course running

toll of the statute of limitations

until 1986.

WAHL, (dissenting). Justice join I in the dissent of Justice Garden- Stuart, Defender, John M. State Public ing. Anderson, Mark Asst. State De- P. Public fender, Minneapolis, appellant. PAGE, (dissenting). III, Gen., Humphrey, Atty. H. Hubert join in the dissent of Justice Gardebr- Foley, Ramsey County Atty., Darrell Tom ing. Hill, Ramsey County Atty., C. Asst. St. Paul, respondent. Minnesota, Respondent,

STATE OPINION DAVIS, Edward Lee Eddie SIMONETT, a/k/a Justice. Davis, petitioner, Appellant. The issue in this case is whether the No. C7-92-1037. holding Kentucky, of Batson v. Court Minnesota. peremptory strikes should be extended to Aug. religion. unpublished In an on the basis of appeals

opinion, the court of concluded that was based grounds equal on race-neutral there was no *2 768 and, event,

protection violation, reviewing after was selected. In the defen- error, peremptory dant the other claims of affirmed the de- concedes the was State’s reasons, granted exercised fendant’s conviction. We further for race-neutral but now peremptory challenge explanation review on the issue contends that the race-neutral constitutionally and offered im- now affirm. State permissible discrimination. Davis, Defendant Lee an Afri- Edward can-American, charged aggravat- Supreme The United States Court has robbery. ed No were struck for not ruled on whether Batson should extend during cause selection. The de- beyond peremptory challenges. race-based fense, however, exercised four of its five Batson, itself, solely speaks of the need to strikes, peremptory while State used eradicate racial discrimination. “The core one of its three. State used the guarantee When equal protection, ensuring cit one peremptory to strike black man from izens that their will not State discriminate jury panel, objected race, defense meaningless on account of would be explanation. and asked for a race-neutral approve were we to exclusion of * * See footnote assumptions on the basis of such *.” infra. 97-98, Id. at at 106 S.Ct. 1723. The Su prosecutor, response, The stated for preme to yet directly Court has examine prospective juror the record that the would viability peremptory challenges em very good juror have been a for the State ployed discriminatory reasons other nothing and that to race had do with her race, just recently than although it has explained: decision to strike. She granted peremptory certiorari to examine highly significant it However was challenges gender based on bias. * * * See State that the man was a Jahovah T.B., J.E.B. v. 606 State ex rel. So.2d 156 great Witness. I have a deal of [sic] (Ala. (Ala.Civ.App.1992),certiorari denied familiarity sect of with the Jahovah’s — 1992), U.S. -, granted by certiorari never, Witness. if I would had a 113 S.Ct. 124 In left, preemptory challenge strike [sic] the cases the United States Court a Jahovah fail Witness [ ]— Batson, involving has reviewed to date it my jury. from protection against has extended that case’s went on: She purposeful racial defen * * * my experience In very that faith is dants from whose race differs that of the integral daily many ways, to their life in jurors, Ohio, excluded v. Powers many not. Christians are That was re- 400, (1991), 113 L.Ed.2d 411 enforced at times least three a week he lawsuits, parties in civil Edmonson v. goes separate to church meetings. —Co., U.S. -, Leesville Concrete faith Jahovah Witness is of a mind (1991), S.Ct. L.Ed.2d and to higher powers will take care of all prosecutors in criminal Georgia v. things my necessary. experience Ja- McCollum, U.S. hovah Witness are reluctant to exercise 120 L.Ed.2d 33 but never to other authority fellow beings over their human forms of discrimination. in this Court House. Because crafted Batson was as a limited prosecutor concluded her statement exception Alabama, Swain by saying appropriate she did feel it not “to L.Ed.2d pry” further into this matter with the equal protection Batson rationale must be there need to was no when exercis- read in the context of earlier case. In ing a peremptory grounds. on race-neutral Swain, “very the Court recounted the old nothing Defense counsel further had to credentials” of strike. add, and the judge perempto- trial ruled the 212-15, at at 831-33. Absent a ry strike would stand. showing of systematic exclusion of blacks transcript dire,

There is no petit jury, voir on a Court held that composition do nor we know the of the jury peremptory against exercise of the black Witness, objecting ably equal protection Jehovah’s denial of jurors was not a of a who is impartial to a quest “In the for an the laws. Significantly, white, Prot- a Jehovah’s Witness. jury, Negro and qualified Powers, the Bat- the Court sustained Catholic, subject to while are alike estant theory challenge, it did not do so on the son challenged cause.” Id. being without *3 equal protection rights the defendant’s 221, light “In the of the that at 836. 85 S.Ct. violated; rather, the decision was the were peremptory system and of the purpose of equal protection an violation society in based on pluralistic in a function it serves Powers, rights. juror’s the excused jury of tri- the institution connection with at -, at 1370.1 The Court cannot U.S. S.Ct. al,” say, “we the Court went on held that the defendant had stand requires an ex- further that the Constitution hold rights. reasons for to assert prosecutor’s amination of challenges any given of his the exercise pertinent reasoning in Powers is The 222, at 836. at 85 S.Ct. case.” Id. striking the did not hold that here. Powers constitutionally impermissi Batson, juror was in 1965. In black was decided Swain might sympathet 1986, it ble because that the Court concluded decided in Rather, the vice manipu- ic to the white defendant. ignore the racist longer no and, exclusion was twofold: of the cross-bias jury process selection lation of the First, cyni racial discrimination “invites therefore, peremptory modified use of the neutrality jury’s and its Batson, respecting cism 476 U.S. at respect to race. at Therefore, obligation to adhere to the law.” Id. if the at 1723. 106 S.Ct. -, Secondly, and 111 S.Ct. at 1371. prima facie case of peremptory raises a rejected solely important, bias, challenged, equally profound of skin color “suffers advance a proponent must then and the * * at -, *.” personal humiliation Id. explanation for the strike race-neutral And as the Court noted however, at 1372. which, not rise to the level need — McCollum, at -, U.S. year later It is back- of cause. Id. public “The need for at defendant-appellant asks ground that the high in cases in especially exception to confidence is the Batson us to extend * * * is crime volving race-related religion. [and] to include Swain community peace preserving essential for Defendant-appellant’s claim of crimes.” involving race-related in trials cross-bias, of much discrimination is one logic rather the law were Ohio, If the life of 499 U.S. like Powers v. might well be ex- experience, Batson 1364, 113 a white than L.Ed.2d 411 where and, for religious to include challenge to the tended defendant raised a Batson matter, of other endless number an of a on a prosecutor’s exercise however, is whether defendant, question, presum- biases.2 juror. Here the black — true, Co., undeserving of proposition were it is if this Leesville Concrete U.S. 1. Edmonson v. event, -, protection. as Under- equal L.Ed.2d 660 111 S.Ct. out, extending civil points Batson to racial bias in the Court has itself stated wood rights jurors. Barbara relies on the of the also rule does not have "fundamental the Batson article, Underwood, Ending Race Dis- integrity factfinding,” quoting in her impact D. on the it, Right Jury is Selection: Whose crimination Hardy, Allen v. (1992), argues Anyway?, Colum.L.Rev. 725 juries prohibition against race-selected jury dis- trace a link between “The effort to rights equal protection be based on the should verdicts, thereby and to identi- and crimination jurors, a race- not the defendant. If of the fundamentally misguid- litigants, fy a harm to racially jury biased is assumed to be selected against Instead, Underwood, Un- supra, ed." defendant, then, logically, a defen- jury argues the harm of derwood only tried before a of his dant should be harm, to the harm of institutional similar is an race, proposition States Su- the United own preme rights. voting discrimination in rejected. Id. at 730. If the Court has tend to favor defendants claim is [peremptory] rule is in 2. "The claim and disfavor defendants of other their own race races, then, hopeless ] conflict with the empirical proposition, [Batson this is "as suggestion that the ban frequently to the highly Even linked claim.” Id. at 731. controversial impartiality especial- purposeful- competence, strike has ror’s been ly employed perpetrate religious bigotry ly the vote of can when one biased integrity the extent that institutional critical make a difference. impaired, of the has been and thus too, Then, litigants “the role of the requiring tradi- further modification of the determining jury’s composition pro peremptory challenge. tional acceptance reason vides one for wide analysis begin We our with a closer look jury system and its verdicts.” Edmon ju- peremptory. at the role of the While —son, U.S. at 111 S.Ct. at 2088 preconceived rors have their individual no- McCollum, at -, (quoted tions prejudices, it is assumed 2358). The S.Ct. at randomness built into they can set them aside so as fair and to be pool to obtain a cross-section can impartial. purpose of is to voir dire seem, litigant, apprehensive to be *4 assumption. test that If it made to is unfair, leaving arbitrary litigant the to appear prospective juror that be a cannot of the The peremptory the “luck draw.” fair, may challenged the be cause. for apprehensiveness by this alleviates allow however, needed, peremptory The is if the parties to their the exercise own intui challenge by is for cause denied the court. judgment respect perceived tive to with legitimate It is needed also when there is juror bias. concern for a fairness this con- but challenge cern is insufficient to a for be against background It is this then that cause. It that a happens enough often extending we consider the Batson chal- juror expresses being doubt about able to noted, lenge religion. As have we Bat- fair, opposing or the but then peremptories is directed at the son use judge juror; ostensibly “rehabilitates” the purposeful for race discrimination. “The problematic situation, in perempto- this the practice, amply in reality many reflected Also, ry peremptory, is useful. without the opinions, and federal-court state- shows may asking trial counsel be deterred from be, challenge may the unfortu- probing questions on voir dire concern for been, nately at times has to discrimi- used any hostility inadvertently raised jurors.” nate black at 106 by not peremptory be remedied strike. Marshall, 1724. S.Ct. at And Justice con- out, pointed curring, per- “Misuse of the words, peremptory gives other challenge emptory to exclude black by added of an assurance accurate verdict flagrant.” has become both common and “resolvpng] (up specified to a num- doubts ber) Underwood, Id. at S.Ct. at See also of exclusion.” favor B. Swain, 231-39, 380 U.S. at 85 S.Ct. at 841- Ending Jury Race Discrimination in Se- (Justice Goldberg’s detailing It, dissent de- Right Anyway?, lection: Is Whose (1992). plorable problems Colum.L.Rev. The fact selec- tion). Because that some unbiased excused of these serious and well- process conditions, price pay United affordable documented States removing ju- for particular Supreme party doubts about a Court has ruled exer- Marshall, concurrence, inevitably expand on discrimination must in his Batson prohibit only jury to race, selection based on argued eliminating peremptories entirely for religion, but also selection based on cases. Id. at criminal at 1728. gender, origin, language, disability, national age, Defendant-appellant in case attaches to his political occupation, party, and a host of brief, appendix, by Judge Ray- anas an article categories. relationship other between the Broderick, Why Peremptory mond J. Chal- points longer prohib- two is clear: the list of Abolished, lenge Temple Be Should L.Rev. categories, ited the less is for room there (1992). peremptory author believes the challenge lawful other than a fabric,” judicial is a in our “flaw which should Underwood, supra, cause." at 761. totally be view, For abolished. Id. at 422. a different Everett, Recently, in State 472 N.W.2d Puiczis, S.M. see Edmonson v. Leesville (Minn. 1991), this court declined to extend Peremptory Co.: Concrete Will the Survive Its discrimination, age noting Batson to United Clause?, Equal Battle With Protection States Court "thus far” has limited John Marshall L.Rev. 37 Batson to race discrimination. prima facie based on these societal views should be cising peremptory which is account, pernicious religious to a bias. should be called to attributed race-oriented Purthermore, (or religious affiliation lack strike to dis- The use of thereof) is not as self-evident as race or purposefully on the basis of reli- criminate gender. every peremp Consequently, for not, however, appear to gion does be com- strike, tory opposing demand counsel could flagrant. are not aware the mon and We religion-neutral explanation. This would misused, being so nor does unduly complicate voir dire and be exces claim. No make such defendant sively sought intrusive for the end to be problem appellate is documented Illinois, achieved. Holland v. This is not to court decisions.3 Cf. say (1990) at 809 not exist in our intolerance does (rejecting Sixth Amendment “fair cross-sec no society, only say that there is but requirement petit jurors tion” so indication that irrational amount, matter, practical this would as a pervades peremptory challenge as to peremptory challenges). elimination integrity jury system. undermine the bigotry in Because the use of Then, too, sought the nature of the bias peremptory challenge preva- is not as challenge is to be eliminated a Batson lent, flagrant, historically ingrained particularly religion. in the case of illusive *5 race, process selection as is we Presumably, sought to eliminat- conclude that neither the federal nor our in is intolerance for ed deliberations requires state constitution an extension of practices the doctrinal beliefs compli- Batson. To extend Batson would particular religious group. of a adherents peremptory challenge cate and erode religious Yet when beliefs translate into procedure unnecessarily, and it would not judgments of the cause to on the merits remedy any long-standing injustice serve to distinguish, in judged, it is difficult to chal- system against perpetrated by the court lenging juror, impermissible a an between classes, specific individuals and as Batson religious bias on the basis affiliation decline, therefore, clearly to ex- does. We religion-neutral explanation. permissible a religious affiliation. tend Batson to us, example, In the case before would speaks aptly explanation juror “reluc- Justice O’Connor Batson was authority special their as “a rule of relevance.” Brown v. tant to exercise over fellow 940, 942, Carolina, 107 beings” a 479 U.S. human be sufficient overcome North 423, 424, (1986) prima religious ju- facie case of bias? A 93 inviolate, (O’Connor,J., in certio- religious concurring are denial of ror’s beliefs but rari). reality” of they person’s “painful are the for a It is the social when basis special, acts in produce moral values and societal on racial discrimination which views Equal intoxicating implicate sense to such matters as the use institutional cohabitation, necessity implication is lack- liquor, of medical Protection Clause. This treatment, disobedience, like, religious Consequently, civil and the affiliation. “[ojutside uniquely sensitive area of it would not seem that a strike 258, Wheeler, juries, theory People theory applied petit v. 22 Cal.3d 148 Cal. section” 890, 748, (1978); Rptr. P.2d rejected by 583 761-62 Com since the United States Soares, 461, 474, Illinois, v. Mass. N.E.2d monwealth 377 387 110 Court in Holland v. 493 U.S. 499, denied, 881, 516 cert. 444 U.S. 100 803, (1990). 107 L.Ed.2d 905 170, (1979); L.Ed.2d 62 110 and State v. authority There is beliefs of 508, Gilmore, 1150, 103 N.J. 511 A.2d juror may provide a race-neutral reason for a supreme state courts barred the use of race, sex, challenge. E.g., Batson United States v. Clem peremptories group based on bias for mons, 1153, (3rd Cir.1989), 892 F.2d cert. cases, religion, origin. or national All of these denied, however, 110 L.Ed.2d specifically dealt with racial bias and (1990); Malone, People IIl.App.3d group respect no evidence of bias with to reli 108, 112-13, gious presented 156 Ill.Dec. N.E.2d affiliation in selection 588-89 was Instead, denied, suggested. (Ill.App.Ct.1991), appeal or Ill.2d all decided Batson, before were decided on the "fair cross- 164 Ill.Dec. 584 N.E.2d 135 race ordinary prosecutor rule that predicate for a challenge. voir dire Cole- giving any ap- without reason States, man v. United 379 A.2d Id,., plies.” 107 S.Ct. at 424. (D.C.1977). See, e.g., United States v. Schullo, F.Supp. (D.Minn.1975) too, think, This put case serves we (Devitt, J.) (in illegal case, gambling perspective the role of “relevance” both by they any asked court if had moral its common law and its constitutional religious feelings or gambling about so sense. prosecutor Here the announced a they could impartial). not be fair and presumed group bias. She said she would court, The trial in the exercise of its discre- just strike not any but Jehovah’s tion, questions controls the that can be Witness. But defendant’s was keep asked to only to the voir dire within prosecutor racial bias. The relevant was not case, advised bounds. In this being charged the State was we do not know how bias, if, indeed, charge was affiliation came to being made, light, proper which is not at all clear.4 questioning but for a chal- lenge asking jurors should be limited to if prosecutor If the had said no more than they why knew of they reason striking she was the black because he sit, they if any difficulty would have Witness, was a Jehovah’s we think this following given court, law would not prima have rebutted the facie they if any difficulty would have sitting bias, case of anymore than if the judgment. prosecutor had said she striking be- Lutheran, cause the black was a Affirmed. Baptist, fact, however, a Muslim. In prosecutor explain went on to the reason WAHL, PAGE, JJ., GARDEBRING and challenge, for her pointing out Jehovah’s dissent. Witnesses, group, as a were reluctant exercise authority WAHL, civil people over other (dissenting). *6 and was a devoted member I respectfully dissent. of religious group.5 We deal here not with whether direct law, Ordinarily at inquiry common on inquiry religious voir dire into affiliation of voir dire religious into a affiliation jurors individual ought generally to be al- and beliefs prejudicial, is irrelevant and and agree lowed. majority with the that such to ask questions Ques- improper. is inquiry generally, although not necessarily religious tions about beliefs are relevant always, improper. only pertinent if religious issues involved case, religious if organization Rather, a we deal with whether the Consti- party, a or if the information is a necessary tution purposeful allows discrimination in dire, During chambers, voir at conference in 5. "The Witnesses claim to base all their teach- Bible, defense counsel ings stated for the record: they accept on the literally which * * * true. society In the U.S. the has taken 45 my understanding “[IJt’s when a there is Supreme signifi- cases to the Court and has won preemptory struck even for a [sic] religion cant victories for freedom of and defendant, that's the same race as the speech." request defense put can that the State at least on the challenging record its reason for of apart “The Witnesses also stand from civil vote, requesting individual and I’m society, refusing office, public run for forces, at this time.” any serve in flag, armed salute the stand point prosecutor gave explana- anthem, At this her pledge the national or recite the of quoted tion about allegiance.” ca, Jehovah’s Witnesses as in the Encyclopaedea New Britanni- finished, beginning opinion. 10, 131, of this When p. she Vol. 132. See also In re Jenison counsel, “Any the court said to defense Contempt 96, com- Proceedings, 265 Minn. answered, “No, 515, ments?" Defense vacated, judgment 14, Your N.W.2d 3, Transcript Proceedings, Honor." of (1963), Jan. 11 L.Ed.2d 39 on remand 267 1992, pp. 107-08. The record does not (1963) tell us (juror Minn. ing 125 N.W.2d 588 refus- when it occurred to the defendant petit raise a to serve on because of the Biblical claim, religious apparently injunction, not, but it was after "Judge you so will not be the trial. judged."). Ross, In religious basis of selection on the affil- Ristaino v. U.S. (1976), majority, alluding to 47 L.Ed.2d 258 iation. The Court held that does aphorism, says require that if the Constitution Holmes’ famous logic inquiry prejudice that voir dire into racial expe- life of the law were rather than rience, by might generally follow from individual then it Batson v. allowed. said: Kentucky, 476 106 S.Ct. Ristaino Court also U.S. subsequent At least of where crimes violence are pur- does not Constitution allow involved, require would de- [defendant] poseful jury selection on fense prej- motions for voir dire on racial my the basis of affiliation. In granted any udice to case where view, logic expe- the dilemma between the defendant a different was of race posed by majority rience is a false one require from the victim. He would a event, any very this case. In words similar result whenever defendant used the United States Court sought prejudice racial voir dire on be- support in several of its relevant decisions cause of the of his own or race adverse my conclusion the Constitution does per witnesses. that such a We note se purposeful not allow discrimination in not, principle, rule could be limited selection on the basis affilia- involving possible preju- cases tion. equal dice. It would apply force questioning whenever voir dire about opinion in Georgia Near the end of its sought, ethnic origins logic and its McCollum, encompass questions concerning 120 L.Ed.2d 33 the Court said: factors, other such as affilia- But there is a distinction between exer origin. tion or national our hete- cising peremptory challenge to discrim rogenous society policy as well as consti- against invidiously inate on ac tutional considerations militate exercising count of perempto race and assumption per divisive se —as ry challenge ju to remove an individual justice rule—that in a court of law ror racial prejudice. who harbors This skin, upon pigmentation turn rejected firmly Court has view that birth, accident of choice of reli- assumptions partiality based on race * * * gion. provide legitimate disqualify basis for (cita- Id. at n. at 1021 n. person impartial juror. as an As omitted) added). sug- tions just (emphasis This this Court stated last Term in Pow *7 gests might ers, to me that the hold that may accept Court not as a defense to “[w]e require the Constitution does not that voir very stereotype racial the U.S., inquiry religious dire into affiliation of indi- at -, the law condemns.” 499 S.Ct., generally vidual be allowed but that “In our heterogene at 1370. the not pur- Constitution also does allow society policy ous as well as constitution poseful discrimination in selection on al militate the considerations di affiliation, the of since reli- per basis assumption visive se rule—that —as classifications, ones, gious like racial are justice may in of law upon a court turn skin, subject scrutiny. pigmentation of strict the the accident of birth, religion.” or the choice Ristai of outset, agree As I said I at the with the Ross, no v. n. 96 majority inquiry on voir dire into reli- n. 47 L.Ed.2d 258 gious jurors gener- affiliation of individual today We therefore reaffirm ally Ordinarily improper. there is no the challenge exercise of a inquiry. preclusion basis for such of must not be on either the of based race precludes inquiry way in no juror stereotypes or the held asking designed from questions other party. uncover flaws individual U.S. at S.Ct. at 2359 would render them unsuitable for ser- added). (emphasis particular vice case. case, however, while, prosecutor juror’s religion of that

In this because time, juror’s religious requiring attorney affilia- at the same fact learned of and, reasons, person expressly challenge have cause in order to tion for whatever physical sensory disability. striking that the reason for with stated Therefore, affiliation, prosecu- I would hold juror’s was the without prospective juror tor’s of any voir dire of the man as to whether reli- this case on basis of that religious affiliation would interfere with 593.32, gion Minn.Stat. and I ability responsibly to be fair violated his § court juror. would remand this case to district exercise his duties as a When the for a new trial. record of discrimination on the basis of stark, religious affiliation is so this court holding

ought to act. I would extend the Kentucky

of Batson v.

strikes based on affiliation and

grant the defendant a new trial.

GARDEBRING, Justice, dissenting. join

I in the of Justice dissent WAHL. Minnesota, Respondent, of STATE PAGE, (dissenting). agreement I am dissent of I separately

Justice Wahl. write SALAZAR, Appellant. Ruben James (1992)pro- believe that Minn.Stat. 593.32 § adequate grounds for vides resolution of No. C9-92-228. case, allowing reaching us to avoid presented. constitutional issues Supreme Court of Minnesota. 593.32, Under Minn.Stat. subd. a citi- § Sept. zen excluded from service race, color, in Minnesota “on account of sex,

religion, origin, national economic sta-

tus, physical sensory disability.” or a

Thus, applies if Minn.Stat. 593.32 §

impaneling juries, prosecutor’s con- argued

duct here is a clear violation. It is 593.32, provisions of Minn.Stat. § 1, apply only

subd. to the selection of the

jury pool impaneling and not to the However,

given jury. subdivision suggests

Minn.Stat. 593.32 otherwise. § *8 “Nothing

Subdivision states: in subdivi- right

sion 1 restricts the to strike an indi- impaneled being

vidual on a from showing physical cause on a that a based sensory disability impair will

ability try particular (Emphasis case.”

added.) By implication, read the lan-

guage say 2 to subdivision subdivi- applies impaneling juries

sion 1 as addition, creating jury pools.

well

it would seem to make no sense for the

legislature provide system allowing for a attorney peremptorily challenge