Opposition Brief — Shaw v. Hahn

| Supreme Court, U.S.

Ay ee ae

: oct 9 145 |

No. 95-412 CAER

ere

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1995

GINA SHAW,

Petitioner,

VS.

JAMES K. HAHN, JOHN EMERSON, JAMES

PEARSON, THOMAS HOKINSON, CORY

BRENTE, CITY OF LOS ANGELES,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES K. HAHN, City Attorney

THOMAS C. HOKINSON, Senior.

Asst. City Attorney

KATHERINE J. HAMILTON,

Assistant City Attorney

200 North Main Street

1700 City Hall East

Los Angeles, California 90012

(213) 485-7400

ATTORNEYS FOR RESPONDENTS

TABLE OF CONTENTS

Page

TA SI Te Or ee oS EE a i

pp Fe yt 2 ee ii

SUMMARY OF ARGUMENT ............ 1

os i gg FERRARO Ee Eee 4

|. THE PETITION SHOULD NOT BE

GRANTED BECAUSE NO CONFLICT

EXISTS AND THE ISSUE PETITIONER

ASKS THIS COURT TO DECIDE HAS

NOT BEEN DECIDED BELOW ..... 4

ll. CERTIORARI SHOULD BE DENIED

BECAUSE PETITIONER WAS

PROPERLY PRECLUDED FROM

RELITIGATING WHETHER HER

CONSTITUTIONAL RIGHTS WERE

WEITER: SCR eb st eh eee 7

es” Pere errs oe SPR eee 12

TABLE OF AUTHORITIES

Page

CASES

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411,

66 U.20.20 Fe UIE 6 6p 4 0 0 0 ae ws 11

Batson v. Kentucky, 476 U.S. 79, i

90 L.Ed.2d 69, 106 S.Ct. 1712 (1986)

i aig ee 1,8,10,12,13

Carter v. Greene County, 396 U.S. 320, 24 L.Ed.2d

549, 90 S.Ct. 518 (1970)......... 5,6,12

Edmonson v. Leesville Concrete Co., 500 U.S. 614,

114 L.Ed.2d 660, 111 S.Ct. 2077 (1991)

Ellis v. Dixon, 349 U.S. 458, 463, 75 S.Ct. 850,

99 L.Ed.2d: 1234. (IGOR) arn ce tate ees 7

Kremer v. Chemical Constr. Corp., 456 U.S. 461,

102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) . 11

Powers v. Ohio, 499 U.S. 400, 113 L.Ed.2d 411,

111 S.Ct. 1364 (1991) .... 5,6,8,9,10,12

STATUTES AND RULES

Rule 10, Rules of the U.S. Supreme Court .. 4

No. 95-412

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1995

GINA SHAW,

Petitioner,

vs.

JAMES K. HAHN, JOHN EMERSON, JAMES

PEARSON, THOMAS HOKINSON, CORY

BRENTE, CITY OF LOS ANGELES,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUMMARY OF ARGUMENT

Petitioner, Gina Shaw, was a petit juror in a civil

case who was excluded from the panel upon the

peremptory challenge of respondent Deputy City

Attorney Cory Brente. Plaintiff in that case (who

was, incidentally, represented by counsel for

petitioner herein) challenged petitioner’s exclusion,

alleging an improper racial bias pursuant to Batson v.

Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct.

1712 (1986). After hearing argument at the bench,

the trial court determined that respondent’s reasons

for excluding petitioner were race-neutral and denied

the Batson challenge. (Opinion, Shaw v. Hahn, et

a/., 56 F.3d 1128, Petition p.3a.) This decision was

neither raised nor alleged as error on plaintiff's

appeal from the underlying judgment. (Petition, p.7a

fn.4.)

Petitioner then brought suit against respondents

alleging that she had been improperly excluded from

the jury on the basis of race and that this action

violated her right to equal protection of the laws.

The action was dismissed for failure to state a claim

and this determination was upheld on appeal.

(Petition, Appendix A.)

Petitioner now asks this Court to grant certiorari

to consider whether a juror is collaterally estopped

from pursuing an independent action for damages

for violation of constitutional rights after a third

party has already unsuccessfully litigated the

question of whether the juror’s rights were violated.

Although petitioner argues that certiorari should be

granted because the Ninth Circuit decided the issue

in @ manner contrary to controlling authority, the

Petition fails to support that contention. None of the

cases cited and relied upon by petitioner require any

different holding than was issued by the Ninth

Circuit. Certiorari is therefore inappropriate because

no special or important reasons have been

articulated in support of the writ.

Petitioner also argues that the court below has

decided the matter in such a way that jurors have

been completely precluded from ever pursuing a

cause of action for violation of civil rights because of

2

improper exclusion from a jury on racial grounds.

This contention misstates the court’s holding which

specifically declined to decide the limits of issue

preciusion when a third party fails to assert the

juror’s equal protection rights. (Petition, p.9a fn.5.)

Because this issue was neither presented to nor

decided by the court below, a grant of certiorari to

consider this question would be inappropriate.

Moreover, it is clear from the record that the

case was properly decided below and certiorari is

unnecessary. To the extent that petitioner

possesses a constitutional right, secured by the

equal protection clause, not to be excluded from jury

service on account of race, that right was previously

advanced by the plaintiff in the civil action in which

petitioner was selected to sit on the jury. Contrary

to petitioner’s contention, the issue is not whether

petitioner was “stripped” of her standing to assert

her constitutional right, but whether that right had

already been litigated and petitioner should be barred

from improperly prolonging the litigation by raising

an issue which was previously decided against her.

3

ARGUMENT

I.

THE PETITION SHOULD NOT BE GRANTED

BECAUSE NO CONFLICT EXISTS AND THE ISSUE

PETITIONER ASKS THIS COURT TO DECIDE HAS

NOT BEEN DECIDED BELOW.

A petition for writ of certiorari will only be

granted when there are special and important

reasons therefor. (Rule 10, Rules of the U.S.

Supreme Court.) Such reasons exist when an

opinion has created a conflict among the circuits or

when a Circuit court has decided a case contrary to

Supreme Court precedent. (/bid.) Neither of these

conditions exist in the instant case. Further,

petitioner asks this court to grant the writ to decide

an issue which the Ninth Circuit not only did not

resolve but specifically reserved. Certiorari is

inappropriate for these reasons and the Petition

should therefore be denied.

Respondents agree that this court has recognized

4

a constitutional "...right not to be excluded from [a

jury] on account of race." (Powers v. Ohio, 499

U.S. 400, 409, 113 L.Ed.2d 411, 424, 111 S.Ct.

1364 (1991).) This right may be asserted by a party

to the lawsuit in which the juror is seated. (/d.. at

499 U.S. 415, 113 L.Ed.2d 428; Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 114 L.Ed.2d

660, 679, 111 S.Ct. 2077 (1991), extending the

rule in Powers to civil actions.) However, this court

has yet to recognize the existence of, much less

establish parameters for, an individual cause of

action for damages on behalf of a juror excluded

from a particular case against an attorney who

exercised a peremptory challenge.

In Powers, this court cited Carter v. Greene

County, 396 U.S. 320, 329-30, 24 L.Ed.2d 549,

557, 90 S.Ct. 518 (1970), for the proposition that

"...individual jurors subjected to racial exclusion

have the legal right to bring suit on their own

behalf." (Powers v. Ohio, supra at 499 U.S. 414,

113 L.Ed.2d 427.) The plaintiffs in Carter, however,

were a class. of black citizens who sought

declaratory and injunctive relief against the county

jury commissioner to end what they alleged was

systematic racial discrimination in the selection of

prospective jurors. (Carter v. Greene County, supra

at 90 S.Ct. 519.) To respondents knowledge,

neither this court nor any circuit court has previously

considered the question of whether the "suit"

contemplated by Powers would encompass the

creation of the cause of action for damages pled by

the individual juror in the lawsuit below.

The Ninth Circuit's decision is thus not in conflict

with any Supreme Court authority nor with cases

decided in any other circuit. Rather, the court

simply decided, based on the circumstances of the

case before it, that petitioner's constitutional rights

had been raised and litigated by the plaintiffs in the

civil action, and that petitioner was precluded from

relitigating the question of whether her rights had

been violated in a separate action for damages. The

court declined to consider whether a juror would be

collaterally estopped from pursuing an individual

remedy in a separate action if a party to the

6

underlying lawsuit failed to object to the juror's

exclusion from the jury. (Petition, p.9a fn.5.)

Petitioner's contention that, pursuant to the court's

decision, "under no imaginable circumstances"

would a juror be able to pursue a separate remedy

for being subjected to a race-based peremptory

challenge is thus incorrect. (Petition, pp.12-13.)

The relevant circumstances were never presented to

the Ninth Circuit and the issue was neither

considered nor decided. Certiorari should therefore

be denied. (Elis v. Dixon, 349 U.S. 458, 463, 75

S.Ct. 850, 854, 99 L.Ed.2d 1231 (1955).)

il.

CERTIORARI SHOULD BE DENIED BECAUSE

PETITIONER WAS PROPERLY PRECLUDED FROM

RELITIGATING WHETHER HER CONSTITUTIONAL

RIGHTS WERE VIOLATED.

A juror’s equal protection right not to be

excluded from jury service on account of race is

generally raised by an objection by a party to a

7

peremptory challenge from the opposing party.

(Powers v. Ohio, supra at 499 U.S. 414-15, 113

L.Ed.2d 427-28; Edmonson v. Leesville Concrete

Co., supra at 114 L.Ed.2d 679.) Given the

difficulties associated with an individual jurors’

pursuing a remedy for an unlawful exclusion from a

jury, this court has found that the party objecting to

the juror's exclusion has a "congruence of interests”

in eliminating racial discrimination from the

courtroom sufficient to give that third party standing

to assert the juror's rights. (Powers v. Ohio, supra

at 499 U.S. 414, 133 L.Ed.2d 427.)

Once the juror's right to equal protection has

been asserted and litigated by a Batson objection,

the juror should be prevented from relitigating the

same issue of unlawful exclusion by utilizing the

procedural device of filing a separate lawsuit.

Contrary to petitioner's assertion, the question is not

whether the doctrine of issue preclusion has been

"elevated above” a constitutional right (Petition,

p.8), but whether petitioner should be able to twice

litigate the constitutionality of her exclusion from the

jury simply because the interest she is asserting is a

constitutional right. Petitioner has cited no authority

for the proposition that factual determinations

involving constitutional rights deserve different

treatment when analyzing issue preclusion than

factual determinations involving other interests.

Certiorari should therefore be denied since petitioner

has not demonstrated that the Ninth Circuit's

decision was erroneous.

Petitioner's arguments that collateral estoppel

was improperly applied in this case because she was

not in privity with the plaintiff in the underlying

action, or because the issue of the constitutionality

of her exclusion from the jury was not "fully and

fairly” litigated, would appear to have been decided

against her by the very cases petitioner relies upon

in urging this court to grant certiorari. This court's

opinion in Powers in particular devoted considerable

analysis to the concept of a third party's standing to

raise and litigate the juror’s constitutional interests.

(Powers v. Ohio, supra at 499 U.S. 410-415, 113

L.Ed.2d 425-428.) The court found that the third

9

party litigant in the underlying action has a

sufficiently close relation, indeed "a bond of trust,”

with the jurors to afford the third party standing to

assert the juror's rights. (/d. at 499 U.S. 413, 113

L.Ed.2d 427.) This “congruence of interests” allows

the party to raise the rights of the juror and insures

that the party will be a “motivated, effective

advocate” for the juror's interests. (/d. at 499 U.S.

414, 113 L.Ed.2d 427.) This court has thus already

found, in effect, that a juror such as petitioner is in

privity with the party making a Batson objection, and

also that the juror’s rights will be fully and fairly

litigated by use of the procedures outlined in Batson

and its progeny. Since there is no question that the

Batson procedures were properly followed in this

case, and particularly since plaintiff, represented by

petitioner's counsel herein, failed to challenge the

Batson ruling on appeal from the underlying

judgment (Petition, pp.3a,7a fn.4), petitioner was

properly preciuded from relitigating the

constitutionality of her exclusion from the jury and

certiorari should be denied.

10

Issue preclusion is appropriate to prevent parties

from relitigating issues that have already been

decided in previous litigation. (Kremer v. Chemical

Constr. Corp., 456 U.S. 461, 466 fn.6, 102 S.Ct.

1883, 1890, 72 L.Ed.2d 262 (1982).) The purpose

of the doctrine is to "...relieve parties of the cost

and vexation of multiple lawsuits, conserve judicial

resources, and, by preventing inconsistent decisions,

encourage reliance on adjudication.” (Allen v.

McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66

L.Ed.2d 308 (1980).) It is difficult to imagine a

more appropriate application of the doctrine of issue

preclusion than to bar a juror from pursuing an

independent action for damages after being excluded

from a jury by use of a peremptory challenge which

a court of competent jurisdiction has found was not

racially motivated and did not violate the juror's right

to equal protection. This determination was correct

and certiorari should therefore be denied.

CONCLUSION

As Justice Scalia pointed out in his dissent to

Powers, the equal protection right possessed by all

citizens is the right not to be excluded from jury

service on the basis of irrelevant factors such as

race, not the right to sit on a particular jury.

(Powers v. Ohio, supra at 499 U.S. 423, 113

L.Ed.2d 434. Emphasis in original.) The danger

anticipated in Powers’ apparent recognition of an

individual juror’s cause of action (/d. at 499 U.S.

425-26, 113 L.Ed.2d 435) has been realized in the

instant lawsuit. If petitioner's interpretation of

Powers is correct, litigants and their counsel now

face the prospect of unlimited and unending

litigation, not only on the underlying dispute, but

also from individual jurors unhappy with their

exclusion from the jury panel. It is more logical to

conclude, however, that this interpretation is not

correct, and that Carter and Powers do not authorize

the maintenance of independent causes of action for

damages after the court has engaged in a Batson

12

inquiry and found no constitutional violation. The

lower courts’ determination that any right petitioner

may have gassessed was adequately advanced by

plaintiff in the underlying lawsuit when the Batson

objection was interposed and litigated was correct

and should not be Cisturbed.

For these and the foregoing reasons, it is

respectfully requested that this Court deny the

petition for writ of certiorari.

DATED: October 4, 1995

Respectfully submitted,

JAMES K. HAHN, City Attorney

THOMAS C. HOKINSON, Senior

Asst. City Attorney

KATHERINE J. HAMILTON,

Assistant City Attorney

Yt

KATHERINE J. HAMILTON,

Assistant City Attorney

Attorneys for Respondents

13