City of Beaumont v. Bouillion

GONZALEZ, Justice,

concurring.

I join in the Court’s opinion and judgment. As further reason for reversing the judgment of the court of appeals under the Whistle-blower Act, I would hold that there is no evidence that the plaintiffs were reprimanded for reporting a violation of the law to an appropriate law enforcement authority. *151 Furthermore, although the Court holds that there is no private cause of action against governmental entities for constitutional violations of speech and assembly rights, I would hold that there is no private right of action for damages against either a governmental entity or an individual arising under the Texas Constitution. 1 I write separately, however, to address the City's Batson challenge. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

Although traditionally parties were given peremptory strikes to remove potential jurors without the necessity of showing cause, Batson and its progeny have radically changed our jurisprudence. 2 For example, it is no longer difficult to demonstrate state action in order to maintain a Batson challenge. Also, in examining the exercise of peremptory challenges, we have shifted the focus from the rights of litigants to receive a fair trial to the rights of jurors to be free from discrimination in the jury selection process. Additionally, we no longer permit attorneys to strike prospective jurors of a cognizable class (race, ethnicity or gender) on the basis of instinct or a hunch. As a result, there is now very little difference between peremptory challenges and challenges for cause. Rather than continue to struggle for many more years with protracted litigation over this issue, we would be better served by admitting that for all practical purposes, peremptory challenges are dead. Thus, I suggest that we refer Rules 282 and 233 of the Texas Rules of Civil Procedure to the Supreme Court Advisory Committee for a study and recommendation. Since no changes will be forthcoming in the near future, I will address the substantive issue raised by the City in this case.

The City contends that the trial court committed reversible error when it did not consider evidence from the first trial, which ended in a mistrial, to determine whether race was a motivating factor in the exercise of the plaintiffs peremptory challenges in the second trial. Applying a “clearly erroneous” standard of review to this record, I would hold that the trial court committed reversible error in not considering the evidence from the first trial. 3

I. FACTS

In order to put the Batson issue in context, a brief review of the underlying facts of this case is in order. This case began when the city manager appointed a black man as the City’s interim police chief. The new police chief and the city manager reorganized the police department, an action that displeased some officers. Several white officers objected publicly to the reorganization, claiming that the “interim” police chief was really “permanent” and that the City hired him as part of its affirmative action program. Among their complaints was that the hiring violated a Beaumont city ordinance requiring that preference in hiring be given to citizens of Beaumont. Eventually, several senior po *152 lice officers took early retirement, allegedly due to retaliation by the City for their complaints; another officer was demoted. Some of these officers filed suit against the City for illegal discrimination and retaliation under the Whistleblower Act, seeking money damages. 4 The first trial resulted in a mistrial due to a hung jury. During jury selection for the first trial, the plaintiffs used all seven of their peremptory strikes to remove black persons from the jury panel.

In the second trial, the attorney for the officers used two strikes for cause and five peremptory challenges to remove all black persons from the venire. After the selection of the second jury, the City requested what is known as a Batson hearing to determine whether the plaintiffs used peremptory challenges to remove racial minorities from the jury pool. At this hearing, the City presented a prima facie case that the plaintiffs may have used race as a basis for the exercise of their peremptory strikes. Therefore, the hearing focused on whether the plaintiffs could articulate race-neutral reasons for their peremptory strikes to rebut the prima facie showing. In order to refute the officers’ race-neutral explanations, to show that the explanations were pretextual, and to establish a pattern of race-conscious peremptory strikes, the City asked the trial court to consider the officers’ exercise of peremptory strikes during the first trial. Specifically, the City sought to demonstrate that the officers were unable to articulate race-neutral reasons for striking black panel members in the first trial. The City’s rationale was that the officers’ failure to offer race-neutral explanations for the peremptory strikes in the first trial would be evidence of an impermissible pattern in the second trial.

After the trial court refused to consider evidence from the first trial, the City filed a bill of exceptions which stated the names and race of the panel members who were struck. The trial court found that the strikes the plaintiffs exercised in the second trial were made without regard to the race of the potential jurors. The jury returned a verdict favorable to the officers. The court of appeals affirmed the jury verdict and held that there was no Batson violation. 5 The court of appeals concluded that the trial court must have considered the evidence in the bill of exceptions and rejected it as cumulative. 878 S.W.2d at 437.

II. HISTORICAL PERSPECTIVE

Peremptory challenges are a mechanism by which parties to a lawsuit are permitted to strike a certain number of prospective jurors from the jury panel without showing cause. Peremptory challenges have been a part “of the common law for many centuries and part of our jury system for nearly 200 years.” Batson, 476 U.S. at 112 , 106 S.Ct. at 1731 (Burger, C.J., dissenting). They are traceable to the early days of the jury trial in England. Swain v. Alabama, 380 U.S. 202, 212-13 , 86 S.Ct. 824 , 831-32, 13 L.Ed.2d 759 (1964). Not too many years ago, the United States Supreme Court considered peremptory challenges “one of the most important ... rights.” Id. at 219 , 85 S.Ct. at 835 (quoting Pointer v. United States, 151 U.S. 396, 408 , 14 S.Ct. 410, 414 , 38 L.Ed. 208 (1894)). This was the status of our jurisprudence until 1986 when Batson was decided.

Discrimination in the selection of juries had been a matter of concern to the judiciary prior to Batson . In 1879, the United States Supreme Court held that the exclusion of a person from jury service on the basis of race violates the criminal defendant’s rights under the Equal Protection Clause of the Fourteenth Amendment. Strander v. West Virginia, 100 U.S. 303, 305 , 25 L.Ed. 664 (1879). The Court dealt specifically with peremptory challenges in Swain, in which the Court held that prosecutors do not have to explain the reasons for their exercise of peremptory challenges, as this would take away the per *153 emptory nature of the strike. 380 U.S. at 222 , 85 S.Ct. at 837 . The Swain Court noted, however, that the habitual exercise of strikes in a racially discriminatory fashion violates the criminal defendant’s constitutional right to equal protection. Id. at 223-24, 85 5.Ct. at 837-38.

The next case to address the use of peremptory challenges for racial reasons was Batson , in which the Court held that a prosecutor’s racially-based peremptory strikes in a criminal case were unconstitutional. 476 U.S. at 89 , 106 S.Ct. at 1719 . In Batson , a black defendant was indicted in a Kentucky state court on charges of burglary and receipt of stolen goods. During voir dire, the trial judge excused some jurors for cause. The prosecutor then used four of his peremptory challenges to remove all black persons from the jury panel. The jury, composed only of white persons, convicted the defendant. The defendant appealed, claiming that the prosecutor’s exercise of peremptory strikes violated the Sixth Amendment. The defendant expressly disclaimed reliance on the Equal Protection Clause of the Fourteenth Amendment. Id. at 112 , 106 S.Ct. at 1731 (Burger, C.J., dissenting). The Kentucky Supreme Court affirmed the conviction, and the United States Supreme Court granted certiorari. Choosing to disregard its own rules against basing an opinion on grounds not raised by a party, a majority of the Batson court reversed and remanded the conviction on Fourteenth Amendment grounds.

The Batson Court set forth the procedural requirements for challenging the validity of peremptory strikes. First, the defendant must prove a prima facie case that the prosecutor’s strikes, which constitute state action, are racially motivated. Id. at 96 , 106 S.Ct. at 1722 . To satisfy this requirement, the defendant must show that he or she is part of a cognizable racial group and that the prosecutor has struck members of this group from the jury panel. Id. Once the defendant makes a prima facie case, the prosecutor must rebut it by articulating a race-neutral explanation for challenging the jurors, which need not rise to the level of a challenge for cause. Id. at 97 , 106 S.Ct. at 1723 . The final step is the trial court’s determination, based on all of the evidence, as to whether the litigant has carried its burden of proving discrimination. Id. at 98 , 106 S.Ct. at 1723 .

Batson has since been extended to civil suits in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 , 111 S.Ct. 2077, 2088 , 114 L.Ed.2d 660 (1991), ethnicity-based peremptory strikes in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991), criminal defendants in Georgia v. McCollum, 505 U.S. 42,-, 112 S.Ct. 2348, 2359 , 120 L.Ed.2d 33 (1992), and gender-based peremptory strikes in J.E.B. v. Alabama ex rel. T.B., — U.S.-,-, 114 S.Ct. 1419, 1430 , 128 L.Ed.2d 89 (1994). The United States Supreme Court has not ruled on whether striking a panel member because of his or her religion violates Batson , although Justice Thomas has stated that “J.E.B. would seem to have extended Bat-son’s equal protection analysis to all strikes based on ... religion.” Davis v. Minnesota, -U.S.-,-, 114 S.Ct. 2120, 2121 , 128 L.Ed.2d 679 (1994) (Thomas, J., dissenting from denial of certiorari). 6 The Texas Court of Criminal Appeals recently ruled on this issue, however, and held that the Fourteenth Amendment prohibits the exercise of peremptory challenges based on a panel member’s religious affiliation. Casarez v. State, — S.W.2d-, 1994 WL 695868 (Tex.Crim.App.1994).

Chief Justice Burger predicted that the result of Batson would be to subject every peremptory challenge to an objection requiring an explanation from the striking party. Batson, 476 U.S. at 127 , 106 S.Ct. at 1739 (Burger, C.J., dissenting). He believed that this in turn would effectively do away with peremptory challenges. Id. Case law re *154 veals the accuracy of Chief Justice Burger’s predictions; the future role of peremptory challenges seems to be quite uncertain.

For instance, in the First Circuit, the definition of a cognizable group has become so expansive that almost any litigant can be a member of a cognizable group for equal protection purposes. The court has identified three elements which it claims must be proven in order to establish cognizability:

(1) the group must be definable and limited by some clearly identifiable factor,

(2) a common thread of attitudes, ideas or experiences must run through the group, and

(3) there must exist a community of interests among the members, such that the group’s interest cannot be adequately represented if the group is excluded from the jury selection process.

United States v. Sgro, 816 F.2d 30, 33 (1st Cir.1987), cert. denied, 484 U.S. 1063 , 108 S.Ct. 1021 , 98 L.Ed.2d 986 (1988). Under the above criteria, a cognizable group could be established on the basis of political affiliation, sexual preference, weight, height, left- or right-handedness, and on and on. It could even be argued that drug addicts and pedophiles are cognizable groups for Batson purposes under this formulation. Thus, the range of possible classifications is so great that peremptory challenges may no longer be feasible in the federal courts in the First Circuit.

Although Texas courts have not extended Batson beyond the Supreme Court holdings, the federal circuit courts have expanded the Batson concept of a cognizable group to Na-five Americans, 7 Italian-Americans, 8 and Asian-Americans. 9 Batson has even been applied to cases in which a white defendant protests the striking of white jurors. See Government of the Virgin Islands v. Forte, 865 F.2d 59, 64 (3d Cir.1989); Roman v. Abrams, 822 F.2d 214, 227-28 (2d Cir.1987), cert. denied, 489 U.S. 1052 , 109 S.Ct. 1311 , 103 L.Ed.2d 580 (1989).

As discussed above, the definition of eog-nizability has the potential to become so expansive as to render peremptory challenges meaningless. However, at present, the federal circuit courts do not recognize cognizable groups based on age, occupation, or association. See, e.g., United States v. De Gross, 960 F.2d 1433 , 1438 n. 8 (9th Cir.1992) (stating that an occupation-based peremptory challenge does not violate Batson because this type of discrimination does not rise to the level of an equal protection violation); Pemberthy v. Beyer, 19 F.3d 857 , 870-71 n. 18 (3d Cir.1994) (noting that age-based strikes do not rise to the level of a Batson violation), cert. denied, — U.S. -, 115 S.Ct. 439 , 130 L.Ed.2d 350 (1994); United States v. Townsley, 856 F.2d 1189, 1190 (8th Cir.1988) (holding that the white defendants’ association with a black defendant was not sufficient to give them standing to join in the black defendant’s Batson challenge), cert. dismissed, 499 U.S. 944 , 111 S.Ct. 1406 , 113 L.Ed.2d 461 (1991). Most strikes based on living conditions or neighborhood are also upheld. See, e.g., Hollingsworth v. Burton, 30 F.3d 109, 112 (11th Cir.1994) (upholding strikes based on home ownership and job stability), cert. denied, — U.S. -, 115 S.Ct. 944 , 130 L.Ed.2d 888 (1995). No court *155 has addressed the issue of whether a prosecutor can strike someone for being physically impaired, although one court has held that a strike based on a panel member’s association with a handicapped person does not violate Batson. Morgan v. City of Albuquerque, 25 F.3d 918, 920 (10th Cir.1994); see also David G. Hart & Russell D. Cawyer, Batson and Its Progeny Prohibit the Use of Peremptory Challenges Based Upon Disability and Religion, 26 Tex.Tech.L.Rev. 109, 112-18 (1995) (arguing that strikes based on a panel member’s disability are unconstitutional).

In addition to applying Batson to an increasing number of groups, courts have used Batson to limit the use of peremptory strikes in other ways. For instance, it is no longer difficult for the party challenging the exercise of a peremptory strike to demonstrate state action in order to establish an Equal Protection Clause violation. Edmonson removed most of the difficulty in proving state action in civil cases. 500 U.S. at 626, 111 S.Ct. at 2086 (noting that because state action is present at every step in the jury selection process except for the parties’ peremptory strikes, strikes are colored by state action).

Also, some courts have moved away from Batson’s focus on the rights of the litigant to a fair and impartial trial and instead now focus on the rights of jurors to be free from discrimination in the jury selection process. The Supreme Court held in Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991), that a white defendant could make a Batson claim on behalf of a black juror because the prosecutor’s peremptory strike of the juror violated the juror’s equal protection rights. The Court explained that although “[a]n individual juror does not have a right to sit on any particular petit jury, ... he or she does possess the right not to be excluded from one on account of race.” Id. at 409, 111 S.Ct. at 1370. Powers is not without its critics. Regarding a similar ruling in Georgia v. McCollum, Justice Thomas noted in concurrence that “[tjoday’s decision, while protecting jurors, leaves defendants with less means of protecting themselves.” — U.S. at-, 112 S.Ct. at 2360 .

Chief Justice Burger noted that “it is quite probable that every peremptory challenge could be objected to on the basis that, because it excluded a venireman who had some characteristic not shared by the remaining members of the venire, it constituted a ‘classification’ subject to equal protection scrutiny.” Batson, 476 U.S. at 124 , 106 S.Ct. at 1738 (Burger, C.J., dissenting). As a result of Batson and its progeny, trial lawyers must be able to articulate a reason for each peremptory strike they exercise. However, requiring lawyers to articulate reasons for the exercise "of peremptory strikes thwarts their ability to remove a juror simply because of an unquantifiable feeling such as a hunch or intuition that the juror is biased toward the lawyer’s client. One commentator summarized what is lost by depriving a lawyer of this ability as follows:

Reason, custom, and common sense take one only so far with a jury (or a judge). The rest is a matter of human nature, about which litigators must learn much, little of it capable of explanation by reasoned analysis.

Irving Younger, Unlawful Peremptory Challenges, 7 Litigation 23, 23 (Fall 1980).

We currently have a system in which peremptory challenges exist in theory, but not in reality. Thus, I suggest we reform Texas Rules of Civil Procedure 232 and 233 to reflect the change wrought by Batson and its progeny on the exercise of peremptory challenges.

III. APPLYING BATSON TO THIS CASE

I believe the trial court erred in refusing to admit evidence from the first trial. It is undisputed that the City established a prima facie case that the plaintiffs used their peremptory strikes improperly in the second trial. Because the plaintiff officers used their peremptory strikes to remove all black panel members, the resulting panel was comprised solely of white jurors. In Powers v. Palacios, 813 S.W.2d 489,491 (Tex.1991), this Court reversed and remanded for a new trial when a party used one peremptory strike to exclude the only black on the prospective panel. See also Straughter v. State, 801 S.W.2d 607, 611 (Tex.App.—Houston [1st *156 Dist.] 1990, no -writ) (using peremptories to strike four black members of the jury panel establishes a prima facie case of possible discriminatory selection). Given these precedents, it is clear that the initial inference that the plaintiffs used their peremptory strikes improperly was tenable.

After the City made a prima facie showing of purposeful discrimination, the burden shifted to the officers to articulate race-neutral justifications for their strikes. Keeton v. State, 749 S.W.2d 861, 867-68 (Tex.Crim.App. 1988); Tompkins v. State, 774 S.W.2d 195, 200 (Tex.Crim.App.1987), aff'd, 490 U.S. 754 , 109 S.Ct. 2180 , 104 L.Ed.2d 834 (1989). The controversy in this case arises at the next stage of the Batson hearing, when the challenging party offers evidence showing that the race-neutral reasons are pretextual. Courts addressing this issue have recognized that once a race-neutral reason for the strike is offered, the party raising the Batson challenge can offer evidence demonstrating that the reason given is pretextual. See Keeton, 749 S.W.2d at 868 ; Slaughter, 801 S.W.2d at 613 . However, what a party can use as evidence to show that a race-neutral articulation is no more than a pretext for the discriminatory use of a peremptory challenge is unclear.

This case gives us an opportunity to clarify what evidence a trial court can consider at this stage of the Batson hearing. Other courts that have addressed this issue have held that evidence of exclusion of black panel members in previous proceedings is admissible to rebut the neutral reasons offered by the party striking the prospective jurors. In Jones v. Davis, 835 F.2d 835, 838-39 (11th Cir.), cert. denied, 486 U.S. 1008 , 108 S.Ct. 1735 , 100 L.Ed.2d 199 (1988), the court allowed the defendant to introduce evidence of the district attorney’s use of peremptory strikes to remove black panel members in other cases. The court observed that the district attorney’s failure to offer evidence refuting the existence of a pattern of excluding black jurors was significant. Id. at 839-40. In United States v. Gordon, 817 F.2d 1538, 1542 (11th Cir.1987), cert. dismissed, 487 U.S. 1265 , 109 S.Ct. 28 , 101 L.Ed.2d 979 (1988), the court held that the defendant was entitled to introduce evidence that the prosecutor had used peremptory challenges to remove black panel members in two similar cases. See also Edwards v. Thigpen, 682 F.Supp. 1374, 1375-81 (S.D.Miss.1987) (admitting evidence of a pattern of excluding black jurors in 318 trials over a period of nine years), aff'd sub nom. Edwards v. Scraggy, 849 F.2d 204 (5th Cir.1988), cert. denied sub nom. Edwards v. Black, 489 U.S. 1059 , 109 S.Ct. 1328 , 103 L.Ed.2d 597 (1989). The Texas Court of Criminal Appeals has held that the trial court must consider “any evidence offered by a defendant to show a pattern or practice of a prosecutor using peremptory challenges in a racially discriminatory manner.” Keeton, 749 S.W.2d at 866 (quoting State v. Antwine, 743 S.W.2d 51, 64-65 (Mo.1987), cert. denied, 486 U.S. 1017 , 108 S.Ct. 1755 , 100 L.Ed.2d 217 (1988)).

I would follow those cases requiring trial courts to consider evidence of racially-motivated strikes in previous proceedings. One of the officers’ allegations was that the police chief was given preferential treatment because he is black. Thus, race was an issue in this case. Evidence from the first jury selection would have been significant in showing that the officers used peremptory strikes as part of a discriminatory pattern. Because the trial court’s refusal to consider the officers’ behavior in the first trial was clearly erroneous, I would reverse the judgment of the court of appeals on this point.

. See FDIC v. Meyer, -U.S. -,-, 114 S.Ct. 996, 1005-06 , 127 L.Ed.2d 308 (1994) (holding that a Bivens cause of action cannot be maintained against a federal agency); Tutt v. City of Abilene, 877 S.W.2d 86, 89 (Tex.App.—Eastland 1994, writ denied) (holding that there is no private right of action against a state governmental entity for violations of the Texas Constitution).

. See generally Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 Bavlor L.Rev. 947 (1994) (suggesting the elimination of peremptory strikes and the expansion of challenges for cause); Alan B. Rich, Peremptory Jury Strikes in Texas After Batson and Edmondson [sic], 23 St. Mary’s L.J. 1055 (1992) (discussing the effect of Batson and its progeny on the exercise of peremptory challenges).

. There is no Texas Supreme Court case that sets the standard for a reviewing court to examine a trial court's ruling on a Batson challenge. In the absence of such guidance, I would follow the standard articulated by our sister court, the Texas Court of Criminal Appeals. See Vargas v. State 838 S.W.2d 552, 553-54 (Tex.Crim.App.1992); DeBlanc v. State, 799 S.W.2d 701, 713 (Tex.Crim.App.1990), cer t. denied, 501 U.S. 1259 , 111 S.Ct. 2912 , 115 L.Ed.2d 1075 (1991); Whitsey v. State, 796 S.W.2d 707, 721-22 (Tex.Crim.App.1989) (plurality opinion). Under the clearly erroneous standard, our role is to review the Batson evidence in the light most favorable to the trial court’s ruling, and to determine whether the ruling was supported by the record. Whitsey, 796 S.W.2d at 721-22 . Reversal is proper only when we are left with a firm conviction that the trial court erred. Id. at 721 (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985)).

. One of the plaintiffs, former officer Woodford D. Bouillion, recently plead guilty and was sentenced in federal court for failing to report a felony. Ex-Officer Sentenced in Money Scam, Austin American Statesman, Jan. 8, 1995, at B2.

. 873 S.W.2d 425 . This case came before the Beaumont Court of Appeals twice. The first appeal exclusively concerned the jury selection. In an unpublished opinion, the court of appeals ordered the trial court to hold a hearing to determine whether the plaintiffs exercised their strikes in a race-neutral manner.

. In Davis, the prosecutor in an aggravated robbery case used a peremptory strike to remove a venire member from the panel because he was a Jehovah’s Witness. State v. Davis, 504 N.W.2d 767, 768 (Minn.1993), ce rt. denied,-U.S.-, 114 S.Ct. 2120 , 128 L.Ed.2d 679 (1994). The Supreme Court of Minnesota upheld the peremp-toiy strike, reasoning that Batson did not extend to strikes based on a juror’s religion. Id. at 772. The court also noted, however, that ”[o]rdinarily ... inquiry on voir dire into a juror’s religious affiliation and beliefs is irrelevant and prejudicial.” Id.

. See United States v. Childs, 5 F.3d 1328, 1337 (9th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1385 , 128 L.Ed.2d 60 (1994); United States v. Iron Moccasin, 878 F.2d 226, 229 (8th Cir. 1989); United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir.1987).

. See United States v. Biaggi, 853 F.2d 89, 96 (2d Cir.1988), cert. denied, 489 U.S. 1052 , 109 S.Ct. 1312 , 103 L.Ed.2d 581 (1989). Contra United States v. Bucci, 839 F.2d 825, 833 (1st Cir.) (holding that the defendants failed to show that Italian-Americans were a cognizable group for Batson purposes), cert. denied, 488 U.S. 844 , 109 S.Ct. 117 , 102 L.Ed.2d 91 (1988); United States v. Di Pasquale, 864 F.2d 271, 277 (3d Cir.1988) (stating additionally that Italian surnames do not prove ethnicity), cert, denied sub nom. DiNorscio v. United States, 492 U.S. 906 , 109 S.Ct. 3216 , 106 L.Ed.2d 566 (1989); Sgro, 816 F.2d at 33 (holding that the defendant did not prove that Italian-Americans are a cognizable group).

. See United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir.1994) (ruling that a prosecutor's peremptory challenge of a Chinese-American prospective juror did.not violate Batson because the prosecutor offered a race-neutral explanation for the strike); United States v. Thompson, 827 F.2d 1254, 1263 (9th Cir.1987) (Sneed, J., dissenting) (expressing no doubt that Batson applies to Asian-Americans).