# Edmonson v. Leesville Concrete Company Inc.

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## Dissenting Opinions

    O'Connor
    Scalia
United States Supreme Court
500 U.S. 614
Edmonson v. Leesville Concrete Company Inc.
No. 89-7743 Argued: Jan. 15, 1991. --- Decided: June 3, 1991
Syllabus
Petitioner Edmonson sued respondent Leesville Concrete Co. in the District Court, alleging that Leesville's negligence had caused him personal injury. During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, Edmonson, who is black, requested that the court require Leesville to articulate a race-neutral explanation for the peremptory strikes. The court refused on the ground that Batson does not apply in civil proceedings, and the impaneled jury, which consisted of 11 white persons and 1 black, rendered a verdict unfavorable to Edmonson. The Court of Appeals affirmed, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications.
Held: A private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race. Pp. 618-619.
(a) Race-based exclusion of potential jurors in a civil case violates the excluded persons' equal protection rights. Cf., e.g., Powers v. Ohio, 499 U.S. ----, ----, 111 S.Ct. 1364, ----, 113 L.Ed.2d 411. Although the conduct of private parties lies beyond the Constitution's scope in most instances, Leesville's exercise of peremptory challenges was pursuant to a course of state action and is therefore subject to constitutional requirements under the analytical framework set forth in Lugar v. Edmondson Oil Co., 457 U.S. 922, 939-942, 102 S.Ct. 2744, 2754-2756, 73 L.Ed.2d 482. First, the claimed constitutional deprivation results from the exercise of a right or privilege having its source in state authority, since Leesville would not have been able to engage in the alleged discriminatory acts without 28 U.S.C. § 1870, which authorizes the use of peremptory challenges in civil cases. Second, Leesville must in all fairness be deemed a government actor in its use of peremptory challenges. Leesville has made extensive use of government procedures with the overt, significant assistance of the government, see, e.g., Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 1345, 99 L.Ed.2d 565, in that peremptory challenges have no utility outside the jury trial system, which is created and governed by an elaborate set of statutory provisions and administered solely by government officials, including the trial judge, himself a state actor, who exercises substantial control over voir dire and effects the final and practical denial of the excluded individual's opportunity to serve on the petit jury by discharging him or her. Moreover, the action in question involves the performance of a traditional governmental function, see, e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152, since the peremptory challenge is used in selecting the jury, an entity that is a quintessential governmental body having no attributes of a private actor. Furthermore, the injury allegedly caused by Leesville's use of peremptory challenges is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kramer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, since the courtroom is a real expression of the government's constitutional authority, and racial exclusion within its confines compounds the racial insult inherent in judging a citizen by the color of his or her skin. Pp. 618-628.
(b) A private civil litigant may raise the equal protection claim of a person whom the opposing party has excluded from jury service on account of race. Just as in the criminal context, see Powers, supra, all three of the requirements for third-party standing are satisfied in the civil context. First, there is no reason to believe that the daunting barriers to suit by an excluded criminal juror, see id., at ----, 111 S.Ct., at ----, would be any less imposing simply because the person was excluded from civil jury service. Second, the relation between the excluded venireperson and the litigant challenging the exclusion is just as close in the civil as it is in the criminal context. See id., at ----. Third, a civil litigant can demonstrate that he or she has suffered a concrete, redressable injury from the exclusion of jurors on account of race, in that racial discrimination in jury selection casts doubt on the integrity of the judicial process and places the fairness of the proceeding in doubt. See id., at ----, 111 S.Ct., at ----. Pp. 628-631.
(c) The case is remanded for a determination whether Edmonson has established a prima facie case of racial discrimination under the approach set forth in Batson, supra, 476 U.S., at 96-97, 106 S.Ct. at 1722-23, such that Leesville would be required to offer race-neutral explanations for its peremptory challenges. P. 631.
895 F.2d 218 (CA1990), reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and SOUTER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined. SCALIA, J., filed a dissenting opinion.
James B. Doyle, Lake Charles, La., for petitioner.
John S. Baker, Jr., Baton Rouge, La., for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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