Subject:  EDMONSON v. LEESVILLE CONCRETE CO., Syllabus



    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
    is being done in connection with this case, at the time the opinion is
    issued.  The syllabus constitutes no part of the opinion of the Court
    but has been prepared by the Reporter of Decisions for the convenience
    of the reader.  See United States v. Detroit Lumber Co., 200 U.9S. 321,
    337.
SUPREME COURT OF THE UNITED STATES


Syllabus



AEDMONSON v. LEESVILLE CONCRETE CO., INC.

Bcertiorari to the united states court of appeals for the fifth circuit

CNo.989-7743.  Argued January 15, 1991--Decided June 3, 1991

DPetitioner 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.9S. 79, 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.

EHeld: A private litigant in a civil case may not use peremptory challenges
to exclude jurors on account of race.  Pp.93-16.

    F(a) Race-based exclusion of potential jurors in a civil case violates
    the excluded persons' equal protection rights.  Cf., e.9g., Powers v.
    Ohio, 499 U.9S. Z, Z-Z.  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.9S.
    922, 939-942.  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.9S.9C. 91870, 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.  Lees ville has made extensive use of government
    procedures with the overt, significant assistance of the government,
    see, e.9g., Tulsa Professional Collection Services, Inc. v. Pope, 458
    U.9S. 478, 486, 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.9g., Terry v. Adams, 345 U.9S. 461, 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.9S. 1, 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.93-13.

    (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 Z,
    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 Z.
    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 Z.  Pp.913-16.

    (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, at 96-97, such that Leesville
    would be required to offer race-neutral explanations for its peremptory
    challenges.  P. 16.

G895 F. 2d 218, reversed and remanded.

HKennedy, 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.9J., and Scalia, J., joined.
Scalia, J., filed a dissenting opinion.
 
 
 

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Subject: 89-7743--OPINION, EDMONSON v. LEESVILLE CONCRETE CO.

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-7743



ATHADDEUS DONALD EDMONSON, PETITIONER v. LEESVILLE CONCRETE COMPANY, INC.


Bon writ of certiorari to the united states court ofappeals for the fifth
circuit

C[June 3, 1991]



A Justice Kennedy delivered the opinion of the Court.
B We must decide in the case before us whether a private litigant in a
civil case may use peremptory challenges to exclude jurors on account of
their race.  Recognizing the impropriety of racial bias in the courtroom,
we hold the race-based exclusion violates the equal protection rights of
the challenged jurors.  This civil case originated in a United States
District Court, and we apply the equal protection component of the Fifth
Amendment's Due Process Clause.  See Bolling v. Sharpe, 347 U.9S. 497
(1954).

CI
D Thaddeus Donald Edmonson, a construction worker, was injured in a
job-site accident at Fort Polk, Louisiana, a federal enclave.  Edmonson
sued Leesville Concrete Company for negligence in the United States
District Court for the Western District of Louisiana, claiming that a
Leesville employee permitted one of the company's trucks to roll backward
and pin him against some construction equipment.  Edmonson invoked his
Seventh Amendment right to a trial by jury.
    During voir dire, Leesville used two of its three peremptory challenges
authorized by statute to remove black persons from the prospective jury.
Citing our decision in Batson v. Kentucky, 476 U.9S. 79 (1986), Edmonson,
who is himself black, requested that the District Court require Leesville
to articulate a race-neutral explanation for striking the two jurors.  The
District Court denied the request on the ground that Batson does not apply
in civil proceedings.  As impaneled, the jury included 11 white persons and
1 black person.  The jury rendered a verdict for Edmonson, assessing his
total damages at $90,000.  It also attributed 80% of the fault to
Edmonson's contributory negligence, however, and awarded him the sum of
$18,000.
    Edmonson appealed, and a divided panel of the Court of Appeals for the
Fifth Circuit reversed, holding that our opinion in Batson applies to a
private attorney representing a private litigant and that peremptory
challenges may not be used in a civil trial for the purpose of excluding
jurors on the basis of race.  860 F. 2d 1308 (1989).  The Court of Appeals
panel held that private parties become state actors when they exercise
peremptory challenges and that to limit Batson to criminal cases "would
betray Batson's fundamental principle [that] the state's use, toleration,
and approval of peremptory challenges based on race violates the equal
protection clause."  Id., at 1314.  The panel remanded to the trial court
to consider whether Edmonson had established a prima facie case of racial
discrimination under Batson.
    The full court then ordered rehearing en banc.  A divided en banc panel
affirmed the judgment of the District Court, holding that a private
litigant in a civil case can exercise peremptory challenges without
accountability for alleged racial classifications.  895 F. 2d 218 (CA5
1990).  The court concluded that the use of peremptories by private
litigants does not constitute state action and, as a result, does not
implicate constitutional guarantees.  The dissent reiterated the arguments
of the vacated panel opinion.  The courts of appeals have divided on the
issue.  See Dunham v. Frank's Nursery & Crafts, Inc., 919 F. 2d 1281 (CA7
1990) (private litigant may not use peremptory challenges to exclude
venirepersons on account of race); Fludd v. Dykes, 863 F. 2d 822 (CA11
1989) (same).  Cf. Dias v. Sky Chefs, Inc., 919 F. 2d 1370 (CA9 1990)
(corporation may not raise a Batson-type objection in a civil trial);
United States v. De Gross, 913 F. 2d 1417 (CA9 1990) (government may raise
a Batson-type objection in a criminal case), reh'g en banc ordered, Z F. 2d
Z (1991); Reynolds v. Little Rock, 893 F. 2d 1004 (CA8 1990) (when
government is involved in civil litigation, it may not use its peremptory
challenges in a racially discriminatory manner).  We granted certiorari,
498 U.9S. Z (1990), and now reverse the Court of Appeals.

CII


A
D In Powers v. Ohio, 499 U.9S. Z (1991), we held that a criminal defendant,
regardless of his or her race, may object to a prosecutor's race-based
exclusion of persons from the petit jury.  Our conclusion rested on a
two-part analysis.  First, following our opinions in Batson and in Carter
v. Jury Commission of Greene County, 396 U.9S. 320 (1970), we made clear
that a prosecutor's race-based peremptory challenge violates the equal
protection rights of those excluded from jury service.  499 U.9S., at Z.
Second, we relied on well-established rules of third-party standing to hold
that a defendant may raise the excluded jurors' equal protection rights.
Id., at Z.
    Powers relied upon over a century of jurisprudence dedicated to the
elimination of race prejudice within the jury selection process.  See,
e.9g., Batson, supra, at 84; Swain v. Alabama, 380 U.9S. 202, 203-204
(1965); Carter, supra, at 329-330; Neal v. Delaware, 103 U.9S. 370, 386
(1881); Strauder v. West Virginia, 100 U.9S. 303 (1880).  While these
decisions were for the most part directed at discrimination by a prosecutor
or other government officials in the context of criminal proceedings, we
have not intimated that race discrimination is permissible in civil
proceedings.  See Thiel v. Southern Pacific Co., 328 U.9S. 217, 220-221
(1946).  Indeed, discrimination on the basis of race in selecting a jury in
a civil proceeding harms the excluded juror no less than discrimination in
a criminal trial.  See id., at 220.  In either case, race is the sole
reason for denying the excluded venire person the honor and privilege of
participating in our system of justice.
    That an act violates the Constitution when committed by a government
official, however, does not answer the question whether the same act
offends constitutional guarantees if committed by a private litigant or his
attorney.  The Constitution's protections of individual liberty and equal
pro tection apply in general only to action by the government.  National
Collegiate Athletic Assn. v. Tarkanian, 488 U.9S. 179, 191 (1988).  Racial
discrimination, though invidious in all contexts, violates the Constitution
only when it may be attributed to state action.  Moose Lodge No.9107 v.
Irvis, 407 U.9S. 163, 172 (1972).  Thus, the legality of the exclusion at
issue here turns on the extent to which a litigant in a civil case may be
subject to the Constitution's restrictions.
    The Constitution structures the National Government, confines its
actions, and, in regard to certain individual liberties and other specified
matters, confines the actions of the States.  With a few exceptions, such
as the provisions of the Thirteenth Amendment, constitutional guarantees of
individual liberty and equal protection do not apply to the actions of
private entities.  Tarkanian, supra, at 191; Flagg Bros, Inc. v. Brooks,
436 U.9S. 149, 156 (1978).  This fundamental limitation on the scope of
constitutional guarantees "preserves an area of individual freedom by
limiting the reach of federal law" and "avoids imposing on the State, its
agencies or officials, responsibility for conduct for which they cannot
fairly be blamed."  Lugar v. Edmondson Oil Co., 457 U.9S. 922, 936-937
(1982).  One great object of the Constitution is to permit citizens to
structure their private relations as they choose subject only to the
constraints of statutory or decisional law.
    To implement these principles, courts must consider from time to time
where the governmental sphere ends and the private sphere begins.  Although
the conduct of private parties lies beyond the Constitution's scope in most
instances, governmental authority may dominate an activity to such an
extent that its participants must be deemed to act with the authority of
the government and, as a result, be subject to constitutional constraints.
This is the jurisprudence of state action, which explores the "essential
dichotomy" between the private sphere and the public sphere, with all its
attendant constitutional obligations.  Moose Lodge, supra, at 172.
    We begin our discussion within the framework for state action analysis
set forth in Lugar, supra, at 937.  There we considered the state action
question in the context of a due process challenge to a State's procedure
allowing private parties to obtain prejudgment attachments.  We asked first
whether the claimed constitutional deprivation resulted from the exercise
of a right or privilege having its source in state authority, 457 U.9S., at
939-941; and second, whether the private party charged with the deprivation
could be described in all fairness as a state actor, id., at 941-942.
    There can be no question that the first part of the Lugar inquiry is
satisfied here.  By their very nature, peremptory challenges have no
significance outside a court of law.  Their sole purpose is to permit
litigants to assist the government in the selection of an impartial trier
of fact.  While we have recognized the value of peremptory challenges in
this regard, particularly in the criminal context, see Batson, 476 U.9S.,
at 98-99, there is no constitutional obligation to allow them.  Ross v.
Oklahoma, 487 U.9S. 81, 88 (1988); Stilson v. United States, 250 U.9S. 583,
586 (1919).  Peremptory challenges are permitted only when the government,
by statute or decisional law, deems it appropriate to allow parties to
exclude a given number of persons who otherwise would satisfy the
requirements for service on the petit jury.
    Legislative authorizations, as well as limitations, for the use of
peremptory challenges date as far back as the founding of the Republic; and
the common-law origins of peremptories predate that.  See Holland v.
Illinois, 493 U.9S. 474, 481 (1990); Swain, 380 U.9S., at 212-217.  Today
in most jurisdictions, statutes or rules make a limited number of
peremptory challenges available to parties in both civil and criminal
proceedings.  In the case before us, the challenges were exercised under a
federal statute that provides, inter alia:
E "In civil cases, each party shall be entitled to three peremptory
challenges.  Several defendants or several plaintiffs may be considered as
a single party for the purposes of making challenges, or the court may
allow additional peremptory challenges and permit them to be exercised
separately or jointly."  28 U.9S.9C. 91870.
F

Without this authorization, granted by an Act of Congress itself, Leesville
would not have been able to engage in the alleged discriminatory acts.
    Given that the statutory authorization for the challenges exercised in
this case is clear, the remainder of our state action analysis centers
around the second part of the Lugar test, whether a private litigant in all
fairness must be deemed a government actor in the use of peremptory
challenges.  Although we have recognized that this aspect of the analysis
is often a factbound inquiry, see Lugar, supra, at 939, our cases disclose
certain principles of general application.  Our precedents establish that,
in determining whether a particular action or course of conduct is
governmental in character, it is relevant to examine the following: the
extent to which the actor relies on governmental assistance and benefits,
see Tulsa Professional Collection Services, Inc. v. Pope, 485 U.9S. 478
(1988); Burton v. Wilmington Parking Authority, 365 U.9S. 715 (1961);
whether the the actor is performing a traditional governmental function,
see Terry v. Adams, 345 U.9S. 461 (1953); Marsh v. Alabama, 326 U.9S. 501
(1946); cf. San Francisco Arts & Athletics, Inc. v. United States Olympic
Committee, 483 U.9S. 522, 544-545 (1987); and whether the injury caused is
aggravated in a unique way by the incidents of governmental authority, see
Shelley v. Kraemer, 334 U.9S. 1 (1948).  Based on our application of these
three principles to the circumstances here, we hold that the exercise of
peremptory challenges by the defendant in the District Court was pursuant
to a course of state action.
    Although private use of state-sanctioned private remedies or procedures
does not rise, by itself, to the level of state action, Tulsa Professional,
supra, at 485, our cases have found state action when private parties make
extensive use of state procedures with "the overt, significant assistance
of state officials."  485 U.9S., at 486; see Lugar v. Edmondson Oil Co.,
457 U.9S. 922 (1982); Sniadach v. Family Finance Corp., 395 U.9S. 337
(1969).  It cannot be disputed that, without the overt, significant
participation of the government, the peremptory challenge system, as well
as the jury trial system of which it is a part, simply could not exist.  As
discussed above, peremptory challenges have no utility outside the jury
system, a system which the government alone administers.  In the federal
system, Congress has established the qualifications for jury service, see
28 U.9S.9C. 91865, and has outlined the procedures by which jurors are
selected.  To this end, each district court in the federal system must
adopt a plan for locating and summoning to the court eligible prospective
jurors.  28 U.9S.9C. 91863; see, e.9g., Jury Plan for the United States
District Court for the Western District of Louisiana (on file with
Administrative Office of United States Courts).  This plan, as with all
other trial court procedures, must implement statutory policies of random
juror selection from a fair cross section of the community, 28 U.9S.9C.
91861, and nonexclusion on account of race, color, religion, sex, national
origin, or economic status, 18 U.9S.9C. 9243; 28 U.9S.9C. 91862.  Statutes
prescribe many of the details of the jury plan, 28 U.9S.9C. 91863, defining
the jury wheel, 91863(b)(4), voter lists, 91863(b)(2), 1869(c), and jury
commissions, 91863(b)(1).  A statute also authorizes the establishment of
procedures for assignment to grand and petit juries, 91863(b) (8), and for
lawful excuse from jury service, 91863(b)(5), (6).    At the outset of the
selection process, prospective jurors must complete jury qualification
forms as prescribed by the Administrative Office of the United States
Courts.  See 28 U.9S.9C. 91864.  Failure to do so may result in fines and
imprisonment, as might a willful misrepresentation of a material fact in
answering a question on the form.  Ibid.  In a typical case, counsel
receive these forms and rely on them when exercising their peremptory
strikes.  See G. Bermant, Jury Selection Procedures in United States
District Courts 7-8, (Federal Judicial Center 1982).  The Clerk of the
United States District Court, a federal official, summons potential jurors
from their employment or other pursuits.  They are required to travel to a
United States courthouse, where they must report to juror lounges, assembly
rooms, and courtrooms at the direction of the court and its officers.
Whether or not they are selected for a jury panel, summoned jurors receive
a per diem fixed by statute for their service.  28 U.9S.9C. 91871.
    The trial judge exercises substantial control over voir dire in the
federal system.  See Fed. Rule Civ. Proc. 47.  The judge determines the
range of information that may be discovered about a prospective juror, and
so affects the exercise of both challenges for cause and peremptory
challenges.  In some cases, judges may even conduct the entire voir dire by
themselves, a common practice in the District Court where the instant case
was tried.  See Louisiana Rules of Court, Local Rule W.9D. La. 13.02
(1990).  The judge oversees the exclusion of jurors for cause, in this way
determining which jurors remain eligible for the exercise of peremptory
strikes.  In cases involving multiple parties, the trial judge decides how
peremptory challenges shall be allocated among them.  28 U.9S.9C. 91870.
When a lawyer exercises a peremptory challenge, the judge advises the juror
he or she has been excused.
    As we have outlined here, a private party could not exercise its
peremptory challenges absent the overt, significant assistance of the
court.  The government summons jurors, constrains their freedom of
movement, and subjects them to public scrutiny and examination.  The party
who exercises a challenge invokes the formal authority of the court, which
must discharge the prospective juror, thus effecting the "final and
practical denial" of the excluded individual's opportunity to serve on the
petit jury.  Virginia v. Rives, 100 U.9S. 313, 322 (1880).  Without the
direct and indispensable participation of the judge, who beyond all
question is a state actor, the peremptory challenge system would serve no
purpose.  By enforcing a discriminatory peremptory challenge, the court
"has not only made itself a party to the [biased act], but has elected to
place its power, property and prestige behind the [alleged]
discrimination."  Burton v. Wilmington Parking Authority, 365 U.9S., at
725.  In so doing, the government has "create[d] the legal framework
governing the [challenged] conduct," National Collegiate Athletic Assn.,
488 U.9S., at 192, and in a significant way has involved itself with
invidious discrimination.
    In determining Leesville's state-actor status, we next consider whether
the action in question involves the performance of a traditional function
of the government.  A traditional function of government is evident here.
The peremp tory challenge is used in selecting an entity that is a
quintessential governmental body, having no attributes of a private actor.
The jury exercises the power of the court and of the government that
confers the court's jurisdiction.  As we noted in Powers, the jury system
performs the critical governmental functions of guarding the rights of
litigants and "insur[ing] continued acceptance of the laws by all of the
people."  499 U.9S., at (slip op. 6).  In the federal system, the
Constitution itself commits the trial of facts in a civil cause to the
jury.  Should either party to a cause invoke its Seventh Amendment right,
the jury becomes the principal factfinder, charged with weighing the
evidence, judging the credibility of witnesses, and reaching a verdict.
The jury's factual de terminations as a general rule are final.  Basham v.
Pennsylvania R. Co., 372 U.9S. 699 (1963).  In some civil cases, as we
noted earlier this Term, the jury can weigh the gravity of a wrong and
determine the degree of the government's interest in punishing and
deterring willful misconduct.  See Pacific Mutual Life Ins. Co. v. Haslip,
499 U.9S. Z (1991).  A judgment based upon a civil verdict may be
preclusive of issues in a later case, even where some of the parties
differ.  See Allen v. McCurry, 449 U.9S. 90 (1980).  And in all
jurisdictions a true verdict will be incorporated in a judgment enforceable
by the court.  These are traditional functions of government, not of a
select, private group beyond the reach of the Constitution.
    If a government confers on a private body the power to choose the
government's employees or officials, the private body will be bound by the
constitutional mandate of raceneutrality.  Cf. Tarkanian, 488 U.9S., at
192-193; RendellBaker v. Kohn, 457 U.9S. 830 (1982).  At least a plurality
of the Court recognized this principle in Terry v. Adams, 345 U.9S. 461
(1953).  There we found state action in a scheme in which a private
organization known as the Jaybird Democratic Association conducted
whites-only elections to select candidates to run in the Democratic primary
elections in Ford Bend County, Texas.  The Jaybird candidate was certain to
win the Democratic primary and the Democratic candidate was certain to win
the general election.  Justice Clark's concurring opinion drew from Smith
v. Allwright, 321 U.9S. 649, 664 (1944), the principle that "any `part of
the machinery for choosing officials' becomes subject to the Constitution's
constraints."  Terry, supra, at 481.  The concurring opinion concluded:

E "[W]hen a state structures its electoral apparatus in a form which
devolves upon a political organization the uncontested choice of public
officials, that organization itself, in whatever disguise, takes on those
attributes of government which draw the Constitution's safeguards into
play."  345 U.9S., at 484.
F

    The principle that the selection of state officials, other than through
election by all qualified voters, may constitute state action applies with
even greater force in the context of jury selection through the use of
peremptory challenges.  Though the motive of a peremptory challenge may be
to protect a private interest, the objective of jury selection proceedings
is to determine representation on a governmental body.  Were it not for
peremptory challenges, there would be no question that the entire process
of determining who will serve on the jury constitutes state action.  The
fact that the government delegates some portion of this power to private
litigants does not change the governmental character of the power
exercised.  The delegation of authority that in Terry occurred without the
aid of legislation occurs here through explicit statutory authorization.
    We find respondent's reliance on Polk County v. Dodson, 454 U.9S. 312
(1981), unavailing.  In that case, we held that a public defender is not a
state actor in his general representation of a criminal defendant, even
though he may be in his performance of other official duties.  See id., at
325; Branti v. Finkel, 445 U.9S. 507, 519 (1980).  While recognizing the
employment relation between the public defender and the government, we
noted that the relation is otherwise adversarial in nature.  454 U.9S., at
323, n.913.  "[A] defense lawyer is not, and by the nature of his function
cannot be, the servant of an administrative superior.  Held to the same
standards of competence and integrity as a private lawyer, .9.9. a public
defender works under canons of professional responsibility that mandate his
exercise of independent judgment on behalf of the client."  Id., at 321.
    In the ordinary context of civil litigation in which the government is
not a party, an adversarial relation does not exist between the government
and a private litigant.  In the juryselection process, the government and
private litigants work for the same end.  Just as a government employee was
deemed a private actor because of his purpose and functions in Dodson, so
here a private entity becomes a government actor for the limited purpose of
using peremptories during jury selection.  The selection of jurors
represents a unique governmental function delegated to private litigants by
the government and attributable to the government for purposes of invoking
constitutional protections against discrimination by reason of race.
    Our decision in West v. Atkins, 487 U.9S. 42 (1988), provides a further
illustration.  We held there that a private physician who contracted with a
state prison to attend to the inmates' medical needs was a state actor.  He
was not on a regular state payroll, but we held his "function[s] within the
state system, not the precise terms of his employment, [determined] whether
his actions can fairly be attributed to the State."  Id., at 55-56.  We
noted that:

E"Under state law, the only medical care West could receive for his injury
was that provided by the State.  If Doctor Atkins misused his power by
demonstrating deliberate indifference to West's serious medical needs, the
resultant deprivation was caused, in a sense relevant for state-action
inquiry, by the State's exercise of its right to punish West by
incarceration and to deny him a venue independent of the State to obtain
needed medical care."  Id., at 55.
F
    In the case before us, the parties do not act pursuant to any
contractual relation with the government.  Here, as in most civil cases,
the initial decision whether to sue at all, the selection of counsel, and
any number of ensuing tactical choices in the course of discovery and trial
may be without the requisite governmental character to be deemed state
action.  That cannot be said of the exercise of peremptory challenges,
however; when private litigants participate in the selection of jurors,
they serve an important function within the government and act with its
substantial assistance.  If peremptory challenges based on race were
permitted, persons could be required by summons to be put at risk of open
and public discrimination as a condition of their participation in the
justice system.  The injury to excluded jurors would be the direct result
of governmental delegation and participation.

    Finally, we note that the injury caused by the discrimination is made
more severe because the government permits it to occur within the
courthouse itself.  Few places are a more real expression of the
constitutional authority of the government than a courtroom, where the law
itself unfolds.  Within the courtroom, the government invokes its laws to
determine the rights of those who stand before it.  In full view of the
public, litigants press their cases, witnesses give testimony, juries
render verdicts, and judges act with the utmost care to ensure that justice
is done.
    Race discrimination within the courtroom raises serious questions as to
the fairness of the proceedings conducted there.  Racial bias mars the
integrity of the judicial system and prevents the idea of democratic
government from becoming a reality.  Rose v. Mitchell, 443 U.9S. 545, 556
(1979); Smith v. Texas, 311 U.9S. 128, 130 (1940).  In the many times we
have addressed the problem of racial bias in our system of justice, we have
not "questioned the premise that racial discrimination in the qualification
or selection of jurors offends the dignity of persons and the integrity of
the courts."  Powers, 499 U.9S., at Z (slip Op. 1).  To permit racial
exclusion in this official forum compounds the racial insult inherent in
judging a citizen by the color of his or her skin.

NB
D Having held that in a civil trial exclusion on account of race violates a
prospective juror's equal protection rights, we consider whether an
opposing litigant may raise the excluded person's rights on his or her
behalf.  As we noted in Powers: "[I]n the ordinary course, a litigant must
assert his or her own legal rights and interests, and cannot rest a claim
to relief on the legal rights or interests of third parties."  Id., at
(slip op. 10).  We also noted, however, that this fundamental restriction
on judicial authority admits of "certain, limited exceptions," ibid., and
that a litigant may raise a claim on behalf of a third party if the
litigant can demonstrate that he or she has suffered a concrete,
redressable injury, that he or she has a close relation with the third
party, and that there exists some hindrance to the third party's ability to
protect his or her own interests.  All three of these requirements for
thirdparty standing were held satisfied in the criminal context, and they
are satisfied in the civil context as well.
    Our conclusion in Powers that persons excluded from jury service will
be unable to protect their own rights applies with equal force in a civil
trial.  While individual jurors subjected to peremptory racial exclusion
have the right to bring suit on their own behalf, "[t]he barriers to a suit
by an excluded juror are daunting."  Id., at Z (slip op 14).  We have no
reason to believe these barriers would be any less imposing simply because
a person was excluded from jury service in a civil proceeding.  Likewise,
we find the relation between the excluded venireperson and the litigant
challenging the exclusion to be just as close in the civil context as in a
criminal trial.  Whether in a civil or criminal proceeding, "[v]oir dire
permits a party to establish a relation, if not a bond of trust, with the
jurors," a relation that "continues throughout the entire trial."  Id., at
Z (slip op. 13).  Exclusion of a juror on the basis of race severs that
relation in an invidious way.    We believe the only issue that warrants
further consideration in this case is whether a civil litigant can
demonstrate a sufficient interest in challenging the exclusion of jurors on
account of race.  In Powers, we held:

E "The discriminatory use of peremptory challenges by the prosecution
causes a criminal defendant cognizable injury, and the defendant has a
concrete interest in challenging the practice.  See Allen v. Hardy, 478
U.9S., at 259 (recognizing a defendant's interest in `neutral jury
selection procedures').  This is not because the individual jurors
dismissed by the prosecution may have been predisposed to favor the
defendant; if that were true, the jurors might have been excused for cause.
Rather, it is because racial discrimination in the selection of jurors
`casts doubt on the integrity of the judicial process,' Rose v. Mitchell,
[supra, at 556], and places the fairness of a criminal proceeding in
doubt."  Id., at Z (slip op. 10-11).
F

    The harms we recognized in Powers are not limited to the criminal
sphere.  A civil proceeding often implicates significant rights and
interests.  Civil juries, no less than their criminal counterparts, must
follow the law and act as impartial factfinders.  And, as we have observed,
their verdicts, no less than those of their criminal counterparts, become
binding judgments of the court.  Racial discrimination has no place in the
courtroom, whether the proceeding is civil or criminal.  See Thiel v.
Southern Pacific Co., 328 U.9S., at 220.  Congress has so mandated by
prohibiting various discriminatory acts in the context of both civil and
criminal trials.  See 18 U.9S.9C. 9243; 28 U.9S.9C. 91861, 1862.  The
Constitution demands nothing less.  We conclude that courts must entertain
a challenge to a private litigant's racially discriminatory use of
peremptory challenges in a civil trial.
    It may be true that the role of litigants in determining the jury's
composition provides one reason for wide acceptance of the jury system and
of its verdicts.  But if race stereotypes are the price for acceptance of a
jury panel as fair, the price is too high to meet the standard of the
Constitution.  Other means exist for litigants to satisfy themselves of a
jury's im partiality without using skin color as a test.  If our society is
to continue to progress as a multiracial democracy, it must recognize that
the automatic invocation of race stereotypes retards that progress and
causes continued hurt and injury.  By the dispassionate analysis which is
its special distinction, the law dispels fears and preconceptions
respecting racial attitudes.  The quiet rationality of the courtroom makes
it an appropriate place to confront race-based fears or hostility by means
other than the use of offensive stereotypes.  Whether the race generality
employed by litigants to challenge a potential juror derives from open
hostility or from some hidden and unarticulated fear, neither motive
entitles the litigant to cause injury to the excused juror.  And if a
litigant believes that the prospective juror harbors the same biases or
instincts, the issue can be explored in a rational way that consists with
respect for the dignity of persons, without the use of classifications
based on ancestry or skin color.

CIII
D It remains to consider whether a prima facie case of racial
discrimination has been established in the case before us, requiring
Leesville to offer race-neutral explanations for its peremptory challenges.
In Batson, we held that determining whether a prima facie case has been
established requires consideration of all relevant circumstances, including
whether there has been a pattern of strikes against members of a particular
race.  476 U.9S., at 96-97.  The same approach applies in the civil
context, and we leave it to the trial courts in the first instance to
develop evidentiary rules for implementing our decision.
    The judgment is reversed, and the case is remanded for further
proceedings consistent with our opinion.

GIt is so ordered.


------------------------------------------------------------------------------




Subject: Y, 89-7743--DISSENT



EDMONSON v. LEESVILLE CONCRETE CO.
 


 
SUPREME COURT OF THE UNITED STATES


No. 89-7743



ATHADDEUS DONALD EDMONSON, PETITIONER v. LEESVILLE CONCRETE COMPANY, INC.


Bon writ of certiorari to the united states court ofappeals for the fifth
circuit

C[June 3, 1991]



A Justice O'Connor, with whom The Chief Justice and Justice Scalia join,
dissenting.

B The Court concludes that the action of a private attorney exercising a
peremptory challenge is attributable to the government and therefore may
compose a constitutional violation.  This conclusion is based on little
more than that the challenge occurs in the course of a trial.  Not
everything that happens in a courtroom is state action.  A trial,
particularly a civil trial, is by design largely a stage on which private
parties may act; it is a forum through which they can resolve their
disputes in a peaceful and ordered manner.  The government erects the
platform; it does not thereby become responsible for all that occurs upon
it.  As much as we would like to eliminate completely from the courtroom
the specter of racial discrimination, the Constitution does not sweep that
broadly.  Because I believe that a peremptory strike by a private litigant
is fundamentally a matter of private choice and not state action, I
dissent.
CI
D In order to establish a constitutional violation, Edmonson must first
demonstrate that Leesville's use of a peremptory challenge can fairly be
attributed to the government.  Unfortunately, our cases deciding when
private action might be deemed that of the state have not been a model of
consistency.  Perhaps this is because the state action determination is so
closely tied to the "framework of the peculiar facts or circumstances
present."  See Burton v. Wilmington Parking Authority, 365 U.9S. 715, 726
(1961).  Whatever the reason, and despite the confusion, a coherent
principle has emerged.  We have stated the rule in various ways, but at
base, "constitutional standards are invoked only when it can be said that
the [government] is responsible for the specific conduct of which the
plaintiff complains."  Blum v. Yaret sky, 457 U.9S. 991, 1004 (1982).
Constitutional "liability attaches only to those wrongdoers `who carry a
badge of authority of [the government] and represent it in some
capacity.'9"  National Collegiate Athletic Assn. v. Tarkanian, 488 U.9S.
179, 191 (1988), quoting Monroe v. Pape, 365 U.9S. 167, 172 (1961).
    The Court concludes that this standard is met in the pres ent case.  It
rests this conclusion primarily on two empirical assertions.  First, that
private parties use peremptory challenges with the "overt, significant
participation of the government."  Ante, at 7.  Second, that the use of a
peremptory challenge by a private party "involves the performance of a
traditional function of the government."  Ante, at 9.  Neither of these
assertions is correct.
CA
D The Court begins with a perfectly accurate definition of the peremptory
challenge.  Peremptory challenges "allow parties to exclude a given number
of persons who otherwise would satisfy the requirements for service on the
petit jury."  Ante, at 5.  This description is worth more careful analysis,
for it belies the Court's later conclusions about the peremptory.
    The peremptory challenge "allow[s] parties," in this case private
parties, to exclude potential jurors.  It is the nature of a peremptory
that its exercise is left wholly within the discretion of the litigant.
The purpose of this longstanding practice is to establish for each party an
"9`arbitrary and capricious species of challenge'9" whereby the "9`sudden
impressions and unaccountable prejudices we are apt to conceive upon the
bare looks and gestures of another'9" may be acted upon.  Lewis v. United
States, 146 U.9S. 370, 376 (1892), quoting 4 W.9Blackstone, Commentaries
*353.  By allowing the litigant to strike jurors for even the most subtle
of discerned biases, the peremptory challenge fosters both the perception
and reality of an impartial jury.  Ibid.; Hayes v. Missouri, 120 U.9S. 68,
70 (1887); Swain v. Alabama, 380 U.9S. 202, 219 (1965); Holland v.
Illinois, 493 U.9S. 474, 481-482 (1990).  In both criminal and civil
trials, the peremptory challenge is a mechanism for the exercise of private
choice in the pursuit of fairness.  The peremptory is, by design, an
enclave of private action in a government-managed proceeding.
    The Court amasses much ostensible evidence of the Federal Government's
"overt, significant participation" in the peremptory process.  See ante, at
7-9.  Most of this evidence is irrelevant to the issue at hand.  The bulk
of the practices the Court describes--the establishment of qualifications
for jury service, the location and summoning of perspective jurors, the
jury wheel, the voter lists, the jury qualification forms, the per diem for
jury service--are independent of the statutory entitlement to peremptory
strikes, or of their use.  All of this government action is in furtherance
of the Government's distinct obligation to provide a qualified jury; the
Government would do these things even if there were no peremptory
challenges.  All of this activity, as well as the trial judge's control
over voir dire, see ante, at 8, are merely prerequisites to the use of a
peremptory challenge; they do not constitute participation in the
challenge.  That these actions may be necessary to a peremptory
challenge--in the sense that there could be no such challenge without a
venire from which to select--no more makes the challenge state action than
the building of roads and provision of public transportation makes state
action of riding on a bus.
    The entirety of the Government's actual participation in the peremptory
process boils down to a single fact: "When a lawyer exercises a peremptory
challenge, the judge advises the juror he or she has been excused."  Ante,
at 8-9.  This is not significant participation.  The judge's action in
"advising" a juror that he or she has been excused is state action to be
sure.  It is, however, if not de minimis, far from what our cases have
required in order to hold the government "responsible" for private action
or to find that private actors "represent" the government.  See Blum,
supra, at 1004; Tarkanian, supra, at 191.  The government "normally can be
held responsible for a private decision only when it has exercised coercive
power or has provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of the State."
Blum, supra, at 1004.
    As an initial matter, the judge does not "encourage" the use of a
peremptory challenge at all.  The decision to strike a juror is entirely up
to the litigant, and the reasons for doing so are of no consequence to the
judge.  It is the attorney who strikes.  The judge does little more than
acquiesce in this decision by excusing the juror.  In point of fact, the
government has virtually no role in the use of peremptory challenges.
Indeed, there are jurisdictions in which, with the consent of the parties,
voir dire and jury selection may take place in the absence of any court
personnel.  See Haith v. United States, 231 F. Supp. 495 (ED Pa. 1964),
aff'd, 342 F. 2d 158 (CA3 1965) (per curiam); State v. Eberhardt, 32 Ohio
Misc. 39, 282 N.9E. 2d 62 (1972).
    The alleged state action here is a far cry from that the Court found,
for example, in Shelley v. Kraemer, 334 U.9S. 1 (1948).  In that case,
state courts were called upon to enforce racially restrictive covenants
against sellers of real property who did not wish to discriminate.  The
coercive power of the State was necessary in order to enforce the private
choice of those who had created the covenants: "[B]ut for the active
intervention of the state courts, supported by the full panoply of state
power, petitioners would have been free to occupy the properties in
question without restraint."  Id., at 19.  Moreover, the courts in Shelley
were asked to enforce a facially discriminatory contract.  In contrast,
peremptory challenges are "exercised without a reason stated [and] without
inquiry."  Swain, supra, at 220.  A judge does not "significantly
encourage" discrimination by the mere act of excusing a juror in response
to an unexplained request.
    There is another important distinction between Shelley and this case.
The state courts in Shelley used coercive force to impose conformance on
parties who did not wish to discriminate.  "Enforcement" of peremptory
challenges, on the other hand, does not compel anyone to discriminate; the
discrimination is wholly a matter of private choice.  See Goldwasser,
Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry
and the Jury in a Criminal Trial, 102 Harv. L. Rev. 808, 819 (1989).
Judicial acquiescence does not convert private choice into that of the
state.  See Blum, 457 U.9S., at 1004-1005.
    Nor is this the kind of significant involvement found in Tulsa
Professional Collection Services, Inc. v. Pope, 485 U.9S. 478 (1988).
There, we concluded that the actions of the executrix of an estate in
providing notice to creditors that they might file claims could fairly be
attributed to the State.  The State's involvement in the notice process, we
said, was "pervasive and substantial."  Id., at 487.  In particular, a
state statute directed the executrix to publish notice.  In addition, the
District Court in that case had "reinforced the statutory command with an
order expressly requiring [the executrix] to `immediately give notice to
creditors.'9"  Ibid.  Notice was not only encouraged by the State, but
positively required.  There is no comparable state involvement here.  No
one is compelled by government action to use a peremptory challenge, let
alone to use it in a racially discriminatory way.
    The Court relies also on Burton v. Wilmington Parking Authority, 365
U.9S. 715 (1961).  See ante, at 6, 9.  But the decision in that case
depended on the perceived symbiotic relationship between a restaurant and
the state parking authority from whom it leased space in a public building.
The State had "so far insinuated itself into a position of interdependence
with" the restaurant that it had to be "recognized as a joint participant
in the challenged activity."  Burton, supra, at 725.  Among the "peculiar
facts [and] circumstances" leading to that conclusion was that the State
stood to profit from the restaurant's discrimination.  365 U.9S., at 726,
724.  As I have shown, the government's involvement in the use of
peremptory challenges falls far short of "interdependence" or "joint
participation."  Whatever the continuing vitality of Burton beyond its
facts, see Jackson v. Metropolitan Edison Co., 419 U.9S. 345, 358 (1974),
it does not support the Court's conclusion here.
    Jackson is a more appropriate analogy to this case.  Metropolitan
Edison terminated Jackson's electrical service under authority granted it
by the State, pursuant to a procedure approved by the state utility
commission.  Nonetheless, we held that Jackson could not challenge the
termination procedure on due process grounds.  The termination was not
state action because the State had done nothing to encourage the particular
termination practice:

E"Approval by a state utility commission of such a request from a regulated
utility, where the commission has not put its own weight on the side of the
proposed practice by ordering it, does not transmute a practice initiated
by the utility and approved by the commission into "state action." .9.9.
Respondent's exercise of the choice allowed by state law where the
initiative comes from it and not from the State, does not make its action
in doing so "state action" for purposes of the Fourteenth Amendment."  Id.,
at 357 (emphasis added; footnote omitted).
F

The similarity to this case is obvious.  The Court's "overt, significant"
government participation amounts to the fact that the government provides
the mechanism whereby a litigant can choose to exercise a peremptory
challenge.  That the government allows this choice and that the judge
approves it, does not turn this private decision into state action.
    To the same effect is Flagg Bros., Inc. v. Brooks, 436 U.9S. 149
(1978).  In that case, a warehouseman's proposed sale of goods entrusted to
it for storage pursuant to the New York Uniform Commercial Code was not
fairly attributable to the State.  We held that "the State of New York is
in no way responsible for Flagg Brothers' decision, a decision which the
State in 97-210 permits but does not compel, to threaten to sell these
respondents' belongings."  Id., at 165.  Similarly, in the absence of
compulsion, or at least encouragement, from the government in the use of
peremptory challenges, the government is not responsible.
    "The essential nature of the peremptory challenge is that it is one
exercised without a reason stated, without inquiry and without being
subject to the court's control."  Swain, 380 U.9S., at 220.  The government
neither encourages nor approves such challenges.  Accordingly, there is no
"overt, significant participation" by the government.
CB
D The Court errs also when it concludes that the exercise of a peremptory
challenge is a traditional government function.  In its definition of the
peremptory challenge, the Court asserts, correctly, that jurors struck via
peremptories "otherwise .9.9. satisfy the requirements for service on the
petit jury."  Ante, at 5.  Whatever reason a private litigant may have for
using a peremptory challenge, it is not the government's reason.  The
government otherwise establishes its requirements for jury service, leaving
to the private litigant the unfettered discretion to use the strike for any
reason.  This is not part of the government's function in establishing the
requirements for jury service.  "Peremptory challenges are exercised by a
party, not in selection of jurors, but in rejection.  It is not aimed at
disqualification, but is exercised upon qualified jurors as matter of favor
to the challenger."  C. Lincoln, Abbott's Civil Jury Trials 92 (3d ed.
1912), quoting O'Neil v. Lake Superior Iron Co., 67 Mich. 560, 35 N.9W. 162
(1887).  For this reason, the Court is incorrect, and inconsistent with its
own definition of the peremptory challenge, when it says that "[i]n the
jury-selection process [in a civil trial], the government and private
litigants work for the same end."  See ante, at 12.  The Court is also
incorrect when it says that a litigant exercising a peremptory challenge is
performing "a traditional function of the government."  See ante, at 9.
    The peremptory challenge is a practice of ancient origin, part of our
common law heritage in criminal trials.  See Swain, supra, at 212-218
(tracing history); Holland, 493 U.9S., at 481 (same).  Congress imported
this tradition into federal civil trials in 1872.  See ch. 333, 17 Stat.
282; Swain, 380 U.9S., at 215, n.914.  The practice of unrestrained private
choice in the selection of civil juries is even older than that, however.
While there were no peremptory challenges in civil trials at common law,
the struck jury system allowed each side in both criminal and civil trials
to strike alternately, and without explanation, a fixed number of jurors.
See id., at 217-218, and n.921, citing J. Proffatt, Trial by Jury 972
(1877), and F. Busch, Law and Tactics in Jury Trials 962 (1949).
Peremptory challenges are not a traditional government function; the
"tradition" is one of unguided private choice.  The Court may be correct
that "[w]ere it not for peremptory challenges, .9.9. the entire process of
determining who will serve on the jury [would] constitut[e] state action."
Ante, at 11.  But there are peremptory challenges, and always have been.
The peremptory challenge forms no part of the government's responsibility
in selecting a jury.
    A peremptory challenge by a private litigant does not meet the Court's
standard; it is not a traditional government function.  Beyond this, the
Court has misstated the law.  The Court cites Terry v. Adams, 345 U.9S. 461
(1953), and Marsh v. Alabama, 326 U.9S. 501 (1946), for the proposition
that state action may be imputed to one who carries out a "traditional
governmental function."  Ante, at 6.  In those cases, the Court held that
private control over certain core government activities rendered the
private action attributable to the State.  In Terry, the activity was a
private primary election that effectively determined the outcome of county
general elections.  In Marsh, a company that owned a town had attempted to
prohibit on its sidewalks certain protected speech.
    In Flagg Bros., supra, the Court reviewed these and other cases that
found state action in the exercise of certain public functions by private
parties.  See 436 U.9S., at 157-160, reviewing Terry, Marsh, Smith v.
Allwright, 321 U.9S. 649 (1944), and Nixon v. Condon, 286 U.9S. 73 (1932).
We explained that the government functions in these cases had one thing in
common: exclusivity.  The public-function doctrine requires that the
private actor exercise "a power `traditionally exclusively reserved to the
State.'9"  436 U.9S., at 157, quoting Jackson, 419 U.9S., at 352.  In order
to constitute state action under this doctrine, private conduct must not
only comprise something that the government traditionally does, but
something that only the government traditionally does.  Even if one could
fairly characterize the use of a peremptory strike as the performance of
the traditional government function of jury selection, it has never been
exclusively the function of the government to select juries; peremptory
strikes are older than the Republic.
    West v. Atkins, 487 U.9S. 42 (1988), is not to the contrary.  The Court
seeks to derive from that case a rule that one who "serve[s] an important
function within the government," even if not a government employee, is
thereby a state actor.  See ante, at 13.  Even if this were the law, it
would not help the Court's position.  The exercise of a peremptory
challenge is not an important government function; it is not a government
function at all.  In any event, West does not stand for such a broad
proposition.  The doctor in that case was under contract with the State to
provide services for the State.  More important, the State hired the doctor
in order to fulfill the State's constitutional obligation to attend to the
necessary medical care of prison inmates.  487 U.9S., at 53, n.910, 57.
The doctor's relation to the State, and the State's responsibility, went
beyond mere performance of an important job.
    The present case is closer to Jackson, supra, and RendellBaker v. Kohn,
457 U.9S. 830 (1982), than to Terry, Marsh, or West.  In the former cases,
the alleged state activities were those of state-regulated private actors
performing what might be considered traditional public functions.  See
Jackson (electrical utility); Rendell-Baker (school).  In each case, the
Court held that the performance of such a function, even if state regulated
or state funded, was not state action unless the function had been one
exclusively the prerogative of the State, or the State had provided such
significant encouragement to the challenged action that the State could be
held responsible for it.  See Jackson, 419 U.9S., at 352-353, 357;
Rendell-Baker, supra, at 842, 840.  The use of a peremptory challenge by a
private litigant meets neither criterion.
CC
D None of this should be news, as this case is fairly well controlled by
Polk County v. Dodson, 454 U.9S. 312 (1981).  We there held that a public
defender, employed by the State, does not act under color of state law when
representing a defendant in a criminal trial. {1}  In such a circumstance,
government employment is not sufficient to create state action.  More
important for present purposes, neither is the performance of a lawyer's
duties in a courtroom.  This is because a lawyer, when representing a
private client, cannot at the same time represent the government.
    Trials in this country are adversarial proceedings.  Attorneys for
private litigants do not act on behalf of the government, or even the
public as a whole; attorneys represent their clients.  An attorney's job is
to "advanc[e] the `undivided interests of his client.'  This is essentially
a private function .9.9. for which state office and authority are not
needed."  Id., at 318-319 (footnotes omitted).  When performing adversarial
functions during trial, an attorney for a private litigant acts
independently of the government:
E"[I]t is the function of the public defender to enter `not guilty' pleas,
move to suppress State's evidence, object to evidence at trial,
cross-examine State's witnesses, and make closing arguments in behalf of
defendants.  All of these are adversarial functions.  We find it peculiarly
difficult to detect any color of state law in such activities."  454 U.9S.,
at 320.
F

    Our conclusion in Dodson was that "a public defender does not act under
color of state law when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding."  Id., at 325.  It cannot
be gainsaid that a peremptory strike is a traditional adversarial act;
parties use these strikes to further their own perceived interests, not as
an aid to the government's process of jury selection.  The Court does not
challenge the rule of Dodson, yet concludes that private attorneys
performing this adversarial function are state actors.  Where is the
distinction?
    The Court wishes to limit the scope of Dodson to the actions of public
defenders in an adversarial relationship with the government.  Ante, at
11-12.  At a minimum then, the Court must concede that Dodson stands for
the proposition that a criminal defense attorney is not a state actor when
using peremptory strikes on behalf of a client, nor is an attorney
representing a private litigant in a civil suit against the government.
Both of these propositions are true, but the Court's distinction between
this case and Dodson turns state action doctrine on its head.  Attorneys in
an adversarial relation to the state are not state actors, but that does
not mean that attorneys who are not in such a relation are state actors.
    The Court is plainly wrong when it asserts that "[i]n the
jury-selection process, the government and private litigants work for the
same end."  See ante, at 12.  In a civil trial, the attorneys for each side
are in "an adversarial relation," ibid.; they use their peremptory strikes
in direct opposition to one another, and for precisely contrary ends.  The
government cannot "work for the same end" as both parties.  In fact, the
government is neutral as to private litigants' use of peremptory strikes.
That's the point.  The government does not encourage or approve these
strikes, or direct that they be used in any particular way, or even that
they be used at all.  The government is simply not "responsible" for the
use of peremptory strikes by private litigants.
    Constitutional "liability attaches only to those wrongdoers `who carry
a badge of authority of [the government] and represent it in some
capacity.'9"  Tarkanian, 488 U.9S., at 191. A government attorney who uses
a peremptory challenge on behalf of the client is, by definition,
representing the government.  The challenge thereby becomes state action.
It is antithetical to the nature of our adversarial process, however, to
say that a private attorney acting on behalf of a private client represents
the government for constitutional purposes.
NII
D Beyond "significant participation" and "traditional function," the
Court's final argument is that the exercise of a peremptory challenge by a
private litigant is state action because it takes place in a courtroom.
Ante, at 13.  In the end, this is all the Court is left with; peremptories
do not involve the "overt, significant participation of the government,"
nor do they constitute a "traditional function of the government."  The
Court is also wrong in its ultimate claim.  If Dodson stands for anything,
it is that the actions of a lawyer in a courtroom do not become those of
the government by virtue of their location.  This is true even if those
actions are based on race.
    Racism is a terrible thing.  It is irrational, destructive, and mean.
Arbitrary discrimination based on race is particularly abhorrent when
manifest in a courtroom, a forum established by the government for the
resolution of disputes through "quiet rationality."  See ante, at 16.  But
not every opprobrious and inequitable act is a constitutional violation.
The Fifth Amendment's Due Process Clause prohibits only actions for which
the Government can be held responsible.  The Government is not responsible
for everything that occurs in a courtroom.  The Government is not
responsible for a peremptory challenge by a private litigant.  I
respectfully dissent.

T
 
 
 
 
 

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1
    Dodson was a case brought under 42 U.9S.9C. 91983, the statutory
mechanism for many constitutional claims.  The issue in that case,
therefore, was whether the public defender had acted "under color of state
law."  454 U.9S., at 314.  In Lugar v. Edmondson Oil Co., 457 U.9S. 922,
929 (1982), the Court held that the statutory requirement of action "under
color of state law" is identical to the "state action" requirement for
other constitutional claims.





Subject: 89-7743--DISSENT, EDMONSON v. LEESVILLE CONCRETE CO.

 


SUPREME COURT OF THE UNITED STATES


No. 89-7743



ATHADDEUS DONALD EDMONSON, PETITIONER v. LEESVILLE CONCRETE COMPANY, INC.


Bon writ of certiorari to the united states court ofappeals for the fifth
circuit

C[June 3, 1991]



A Justice Scalia, dissenting.

B I join Justice O'Connor's dissent, which demonstrates that today's
opinion is wrong in principle.  I write to observe that it is also
unfortunate in its consequences.
    The concrete benefits of the Court's newly discovered constitutional
rule are problematic.  It will not necessarily be a net help rather than
hindrance to minority litigants in obtaining racially diverse juries.  In
criminal cases, Batson v. Kentucky, 476 U.9S. 79 (1986), already prevents
the prosecution from using race-based strikes.  The effect of today's
decision (which logically must apply to criminal prosecutions) will be to
prevent the defendant from doing so--so that the minority defendant can no
longer seek to prevent an all-white jury, or to seat as many jurors of his
own race as possible.  To be sure, it is ordinarily more difficult to prove
race-based strikes of white jurors, but defense counsel can generally be
relied upon to do what we say the Constitution requires.  So in criminal
cases, today's decision represents a net loss to the minority litigant.  In
civil cases that is probably not true-but it does not represent an
unqualified gain either.  Both sides have peremptory challenges, and they
are sometimes used to assure rather than to prevent a racially diverse
jury. The concrete costs of today's decision, on the other hand, are not at
all doubtful; and they are enormous.  We have now added to the duties of
already-submerged state and federal trial courts the obligation to assure
that race is not included among the other factors (sex, age, religion,
political views, economic status) used by private parties in exercising
their peremptory challenges.  That responsibility would be burden enough if
it were not to be discharged through the adversary process; but of course
it is.  When combined with our decision this Term in Powers v. Ohio, 499
U.9S. Z (1991), which held that the party objecting to an allegedly
race-based peremptory challenge need not be of the same race as the
challenged juror, today's decision means that both sides, in all civil jury
cases, no matter what their race (and indeed, even if they are artificial
entities such as corporations), may lodge racial-challenge objections and,
after those objections have been considered and denied, appeal the
denials--with the consequence, if they are successful, of having the
judgments against them overturned.  Thus, yet another complexity is added
to an increasingly Byzantine system of justice that devotes more and more
of its energy to sideshows and less and less to the merits of the case.
Judging by the number of Batson claims that have made their way even as far
as this Court under the pre-Powers regime, it is a certainty that the
amount of judges' and lawyers' time devoted to implementing today's newly
discovered Law of the Land will be enormous.  That time will be diverted
from other matters, and the overall system of justice will certainly
suffer.  Alternatively, of course, the States and Congress may simply
abolish peremptory challenges, which would cause justice to suffer in a
different fashion.  See Holland v. Illinois, 493 U.9S. 474, 484 (1990).
    Although today's decision neither follows the law nor produces
desirable concrete results, it certainly has great symbolic value.  To
overhaul the doctrine of state action in this fashion--what a magnificent
demonstration of this institution's uncompromising hostility to race-based
judgments, even by private actors!  The price of the demonstration is,
alas, high, and much of it will be paid by the minority litigants who use
our courts.  I dissent.

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