Harold Alex, Jr. v. Rayne Concrete Service

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-1555

HAROLD ALEX, JR., ET AL.

VERSUS

RAYNE CONCRETE SERVICE, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 70712
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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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

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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

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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.

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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

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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.

REVERSED.

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