The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_7743/89_7743.d1

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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.