STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
04-1555
HAROLD ALEX, JR., ET AL.
VERSUS
RAYNE CONCRETE SERVICE, ET AL.
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 70712 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.
REVERSED.
Harold D. Register, Jr. P. O. Box 80214 Lafayette, LA 70598-0214 (337) 981-6644 Counsel for Plaintiff/Appellant Harold Alex, Jr. Brithney Alex Charles Martin Kreamer, Sr. Allen & Gooch 1015 St. John Street Lafayette, LA 70502-3768 (337) 291-1390 Counsel for Defendant/Appellee Employers Mutual Casualty Company Rayne Concrete Service
Patricia J. Delpit Louisiana Workers' Compensation P. O. Box 98001 Baton Rouge, LA 70898-8001 (225) 231-0899 Counsel for Intervenor/Appellee Louisiana Workers’ Compensation Corp. GREMILLION, Judge.
We have accepted this matter for hearing en banc for the purpose of
determining whether a Batson/Edmonson challenge in a civil trial must be taken up
by supervisory writ or whether it may be considered on appeal following the
conclusion of the trial.
In Adams v. Canal Indemnity Co., 99-1190, p. 4 (La.App. 3 Cir.
5/10/00), 760 So.2d 1197, 1200, writs denied, 00-1636, 00-1637, 00-1640 (La.
9/22/00), 769 So.2d 1213, this court observed, “Courts of this state have consistently
held that a party to a civil suit who seeks review of a Batson/Edmonson issue must
do so by an application for supervisory writs.” (Emphasis added). We now conclude
that this observation is erroneous and this court’s reliance on Freeman v. Humble,
27,419 (La.App. 2 Cir. 9/27/95), 661 So.2d 652, and Phillips v. Winn Dixie Stores,
Inc., 94-354 (La.App. 4 Cir. 2/23/95), 650 So.2d 1259, writ denied, 95-0748 (La.
4/28/98), 653 So.2d 599, was misplaced.
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077
(1991), involved a black citizen of Louisiana, who challenged his employer’s use of
peremptory challenges to exclude black jurors from the prospective jury. After the
federal district court held that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712
(1986), did not apply in civil proceedings, the matter proceeded to trial with the
plaintiff ultimately being found 80% contributorily at fault in causing his injury. On
appeal, the Fifth Circuit, Court of Appeal, sitting en banc, affirmed the holding of the
district court with regard to the application of Batson challenges in civil proceedings.
Finding the Courts of Appeals divided on this issue, the United States Supreme Court
1 granted certiorari. After reviewing the matter, the Supreme Court reversed the
decision of the Fifth Circuit, finding that private litigants could not use their
peremptory challenges to exclude jurors solely based on their race. Edmonson, 500
U.S. 614, 111 S.Ct. 2077.
As it is recognized that Batson applies in civil proceedings via
Edmonson, our query involves which procedural device a party should utilize in order
to bring his/her Batson challenge to our attention. There continues to be a split in the
circuits as to the procedural vehicle to be used to review this issue. The first circuit
has consistently reviewed Batson challenges on appeal. See Grayson v. R.B. Ammon
and Assocs., Inc., 99-2597 (La.App. 1 Cir. 11/3/00), 778 So.2d 1, writs denied, 00-
3270, 00-3311 (La. 1/26/01), 782 So.2d 1026, 1027; Lee v. Magnolia Garden
Apartments, 96-1328 (La.App. 1 Cir. 5/9/97), 694 So.2d 1142, writ denied, 97-1544
(La. 9/26/97), 701 So.2d 990; Hurts v. Woodis, 95-2166 (La.App. 1 Cir. 6/28/96), 676
So.2d 1166; see also Richard v. St. Paul Fire and Marine Ins. Co., 94-2112 (La.App.
1 Cir. 6/32/95), 657 So.2d 1087.
The second circuit in Freemam stated that because no writ was taken, the
court had “no right to appellate review of [a Batson] issue,” but nonetheless went on
to evaluate the issue on its merit. Freeman, 661 So.2d at 654. Despite the verbiage
in Freeman, the second circuit has evaluated Batson challenges on appeal. See
Matthews v. Arkla Lubricants Inc., 32,121 (La.App. 2 Cir. 8/18/99), 740 So.2d 787;
see also Smith v. Lincoln Gen. Hosp., 27,133 (La.App. 2 Cir. 6/21/95), 658 So.2d
256, writ denied, 95-1808 (La. 10/27/95), 662 So.2d 3. The fourth circuit in Phillips
also stated that a review of a Batson/Edmonson issue must be done by application of
2 supervisory writ; however, it relies on cases where the fourth circuit has examined the
issue on appeal. In Cooke v. Allstate Insurance Co., 93-1057, p. 7 (La.App. 4 Cir.
4/14/94), 635 So.2d 1330, 1334, writ denied, 94-1257 (La. 9/2/94), 659 So.2d 496,
the appellate court reviewed the Batson issue, accorded much deference to the trial
court, and found “no error in the trial court’s determination that no pattern of
discrimination existed.” In view of Adams’ erroneous observation and flawed
reliance on Phillips and Freeman, we find that Adams is unpersuasive and not
controlling.
We note that the first circuit in Hurts, 676 So.2d 1166, declined to
follow the narrow view enunciated by the fourth circuit in Holmes, 622 So.2d 748,
as followed by the second circuit in Freeman, 661 So.2d 652. In so holding, the first
circuit held that a Batson/Edmonson challenge could be reviewed on appeal after
finding no “meaningful distinction” between “the trial court’s ruling on jury
challenges when based on a Batson claim and appellate review of the trial court’s
ruling when based on a party’s challenge to a juror for cause, which are routinely
reviewed on appeal.” Hurts, 676 So.2d at 1172.
Further, in State v. Myers, 99-1803, (La. 4/11/00), 761 So.2d 498, the
supreme court found that the trial court committed legal error in prematurely
concluding that there was no pattern of racial exclusion in the jury selection in this
case. On review, the supreme court stated that the issue “raises serious federal
constitutional equal protection issues affecting the rights of both the defendant and
the excused venirepersons.” Id. at 503. It is clear that the supreme court considered
the issue of racially-motivated peremptory strikes in this criminal matter on appeal.
3 We can find no good reason to distinguish between a civil and criminal trial in
determining the method by which an appellate court should review Batson/Edmonson
challenges when the same equal protection considerations arise.
After considering the matter, we find that the precepts of judicial
economy and fundamental fairness would be better served by allowing a party to a
civil suit to have his Batson/Edmonson challenge heard on appeal, rather than solely
on application for supervisory writ. Other than the case law cited above, we base this
finding on several other reasons. First, on the grounds of judicial economy, we note
the burden and strain that would be placed on an attorney, especially a sole
practitioner or a member of a small firm, if required to file a writ application during
trial.
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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
04-1555
HAROLD ALEX, JR., ET AL.
VERSUS
RAYNE CONCRETE SERVICE, ET AL.
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 70712 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.
REVERSED.
Harold D. Register, Jr. P. O. Box 80214 Lafayette, LA 70598-0214 (337) 981-6644 Counsel for Plaintiff/Appellant Harold Alex, Jr. Brithney Alex Charles Martin Kreamer, Sr. Allen & Gooch 1015 St. John Street Lafayette, LA 70502-3768 (337) 291-1390 Counsel for Defendant/Appellee Employers Mutual Casualty Company Rayne Concrete Service
Patricia J. Delpit Louisiana Workers' Compensation P. O. Box 98001 Baton Rouge, LA 70898-8001 (225) 231-0899 Counsel for Intervenor/Appellee Louisiana Workers’ Compensation Corp. GREMILLION, Judge.
We have accepted this matter for hearing en banc for the purpose of
determining whether a Batson/Edmonson challenge in a civil trial must be taken up
by supervisory writ or whether it may be considered on appeal following the
conclusion of the trial.
In Adams v. Canal Indemnity Co., 99-1190, p. 4 (La.App. 3 Cir.
5/10/00), 760 So.2d 1197, 1200, writs denied, 00-1636, 00-1637, 00-1640 (La.
9/22/00), 769 So.2d 1213, this court observed, “Courts of this state have consistently
held that a party to a civil suit who seeks review of a Batson/Edmonson issue must
do so by an application for supervisory writs.” (Emphasis added). We now conclude
that this observation is erroneous and this court’s reliance on Freeman v. Humble,
27,419 (La.App. 2 Cir. 9/27/95), 661 So.2d 652, and Phillips v. Winn Dixie Stores,
Inc., 94-354 (La.App. 4 Cir. 2/23/95), 650 So.2d 1259, writ denied, 95-0748 (La.
4/28/98), 653 So.2d 599, was misplaced.
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077
(1991), involved a black citizen of Louisiana, who challenged his employer’s use of
peremptory challenges to exclude black jurors from the prospective jury. After the
federal district court held that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712
(1986), did not apply in civil proceedings, the matter proceeded to trial with the
plaintiff ultimately being found 80% contributorily at fault in causing his injury. On
appeal, the Fifth Circuit, Court of Appeal, sitting en banc, affirmed the holding of the
district court with regard to the application of Batson challenges in civil proceedings.
Finding the Courts of Appeals divided on this issue, the United States Supreme Court
1 granted certiorari. After reviewing the matter, the Supreme Court reversed the
decision of the Fifth Circuit, finding that private litigants could not use their
peremptory challenges to exclude jurors solely based on their race. Edmonson, 500
U.S. 614, 111 S.Ct. 2077.
As it is recognized that Batson applies in civil proceedings via
Edmonson, our query involves which procedural device a party should utilize in order
to bring his/her Batson challenge to our attention. There continues to be a split in the
circuits as to the procedural vehicle to be used to review this issue. The first circuit
has consistently reviewed Batson challenges on appeal. See Grayson v. R.B. Ammon
and Assocs., Inc., 99-2597 (La.App. 1 Cir. 11/3/00), 778 So.2d 1, writs denied, 00-
3270, 00-3311 (La. 1/26/01), 782 So.2d 1026, 1027; Lee v. Magnolia Garden
Apartments, 96-1328 (La.App. 1 Cir. 5/9/97), 694 So.2d 1142, writ denied, 97-1544
(La. 9/26/97), 701 So.2d 990; Hurts v. Woodis, 95-2166 (La.App. 1 Cir. 6/28/96), 676
So.2d 1166; see also Richard v. St. Paul Fire and Marine Ins. Co., 94-2112 (La.App.
1 Cir. 6/32/95), 657 So.2d 1087.
The second circuit in Freemam stated that because no writ was taken, the
court had “no right to appellate review of [a Batson] issue,” but nonetheless went on
to evaluate the issue on its merit. Freeman, 661 So.2d at 654. Despite the verbiage
in Freeman, the second circuit has evaluated Batson challenges on appeal. See
Matthews v. Arkla Lubricants Inc., 32,121 (La.App. 2 Cir. 8/18/99), 740 So.2d 787;
see also Smith v. Lincoln Gen. Hosp., 27,133 (La.App. 2 Cir. 6/21/95), 658 So.2d
256, writ denied, 95-1808 (La. 10/27/95), 662 So.2d 3. The fourth circuit in Phillips
also stated that a review of a Batson/Edmonson issue must be done by application of
2 supervisory writ; however, it relies on cases where the fourth circuit has examined the
issue on appeal. In Cooke v. Allstate Insurance Co., 93-1057, p. 7 (La.App. 4 Cir.
4/14/94), 635 So.2d 1330, 1334, writ denied, 94-1257 (La. 9/2/94), 659 So.2d 496,
the appellate court reviewed the Batson issue, accorded much deference to the trial
court, and found “no error in the trial court’s determination that no pattern of
discrimination existed.” In view of Adams’ erroneous observation and flawed
reliance on Phillips and Freeman, we find that Adams is unpersuasive and not
controlling.
We note that the first circuit in Hurts, 676 So.2d 1166, declined to
follow the narrow view enunciated by the fourth circuit in Holmes, 622 So.2d 748,
as followed by the second circuit in Freeman, 661 So.2d 652. In so holding, the first
circuit held that a Batson/Edmonson challenge could be reviewed on appeal after
finding no “meaningful distinction” between “the trial court’s ruling on jury
challenges when based on a Batson claim and appellate review of the trial court’s
ruling when based on a party’s challenge to a juror for cause, which are routinely
reviewed on appeal.” Hurts, 676 So.2d at 1172.
Further, in State v. Myers, 99-1803, (La. 4/11/00), 761 So.2d 498, the
supreme court found that the trial court committed legal error in prematurely
concluding that there was no pattern of racial exclusion in the jury selection in this
case. On review, the supreme court stated that the issue “raises serious federal
constitutional equal protection issues affecting the rights of both the defendant and
the excused venirepersons.” Id. at 503. It is clear that the supreme court considered
the issue of racially-motivated peremptory strikes in this criminal matter on appeal.
3 We can find no good reason to distinguish between a civil and criminal trial in
determining the method by which an appellate court should review Batson/Edmonson
challenges when the same equal protection considerations arise.
After considering the matter, we find that the precepts of judicial
economy and fundamental fairness would be better served by allowing a party to a
civil suit to have his Batson/Edmonson challenge heard on appeal, rather than solely
on application for supervisory writ. Other than the case law cited above, we base this
finding on several other reasons. First, on the grounds of judicial economy, we note
the burden and strain that would be placed on an attorney, especially a sole
practitioner or a member of a small firm, if required to file a writ application during
trial. This is especially true in those instances where the trial court refuses to grant
a stay of the jury trial while awaiting a review of its decision. Second, we note the
impracticality of requiring this type of challenge to be taken up on a writ application.
If the trial court refuses to grant a stay of the proceedings and the jury trial continues,
a mistrial would have to be declared if the challenger’s writ is granted and the
appellate court holds that the trial court’s decision is erroneous in dismissing the
affected jurors. Moreover, if the trial court were to grant a stay, it would be taxing
on the jury venire as, depending on the decision reached, the excluded venire
members, the jury, and the rest of the venire would have to return to court to complete
jury selection and then the trial. Thus, in these two instances judicial economy would
be impeded.
With regard to fundamental fairness, we note, as did the first circuit in
Hurts, 676 So.2d 1166, that the review of a trial court’s ruling on a party’s challenge
4 of a juror for cause is routinely reviewed on appeal. As found by the first circuit, we
find no meaningful distinction between this type of ruling and a trial court’s ruling
on a party’s Batson/Edmonson challenge. Further, as we pointed out, Batson
challenges are taken up on appeal in criminal cases all the time. We can find no
distinction between Batson/Edmonson challenges in the context of criminal and civil
matters. Finally, the challenge in Edmonson was considered by the United States
Supreme Court on appeal.
Considering the foregoing, we reverse our opinion in Adams v. Canal
Indemnity Co., 99-1190 (La.App. 3 Cir. 5/10/00), 760 So.2d 1197, writs denied, 00-
1636, 00-1637, 00-1640 (La. 9/22/00), 769 So.2d 1213. Although we will still
consider Batson/Edmonson challenges via writ application, we will also address such
issues on appeal. The remaining issues in this case will be addressed by the original
panel to which it was assigned.