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Docket Number

Docket No. 179936.

Attorney(S)

Chambers Steiner (by Angela J. Nicita and Sanford L. Steiner), for the plaintiff. York Miller, P.C. (by David S. York and Michael J. Miller), for the defendant.

Judges

Joel P. Hoekstra

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Smart Summary

Case Summary: Clarke v. Kmart Corporation, Docket No. 179936 (Mich. Ct. App. Dec. 10, 1996)

Factual and Procedural Background

The plaintiff brought claims for assault and battery, false imprisonment, and discrimination and obtained a jury verdict in her favor following a five-day trial in the Kalamazoo Circuit Court. The defendant, Kmart Corporation, appealed as of right from that jury verdict and from the trial court's denial of its motion for a new trial. The opinion references that the underlying facts of the case were previously set forth in an earlier appellate decision, Clarke v Kmart Corp, 197 Mich. App. 541; 495 N.W.2d 820 (1992). This opinion addresses alleged errors that occurred during the jury selection process at the trial and whether those errors require reversal and a new trial.

Legal Issues Presented

Whether the trial court complied with the procedures established by Batson v. Kentucky when minority jurors were challenged and whether the court's sua sponte actions deprived the defendant of a fair and impartial jury.
Whether the plaintiff made the required prima facie showing of purposeful racial discrimination before the burden shifted to the defendant to provide race-neutral reasons for peremptory challenges.
Whether the trial court abused its discretion in finding the defendant's stated reasons for striking certain jurors were not race-neutral.
Whether any error in the handling of peremptory challenges was harmless or whether it requires reversal and a new trial.

Arguments of the Parties

Defendant's Arguments

Defendant argued it was deprived of the right to a fair and impartial jury because of errors in the jury selection process, specifically the trial court's handling of challenges to minority jurors.
Defendant contended that the trial court improperly and sua sponte required it to articulate race-neutral reasons for challenging a black juror even though the plaintiff had not raised a Batson challenge or made any objection based upon Batson.
Defendant maintained that when required to articulate race-neutral reasons, its proffered explanations (one based on career orientation and two based on alleged prohibited conversations relevant to the trial) were legitimate, race-neutral bases for peremptory challenges under controlling precedent.

Plaintiff's Arguments

Plaintiff did not present a formal evidentiary account in this opinion text, but it is noted that plaintiff argued any error in seating the three jurors was harmless.
Plaintiff cited United States v. Annigoni, 68 F.3d 279 (9th Cir. 1995) for the proposition that denial of a peremptory challenge to which a party is entitled does not necessarily require a new trial because the party did not lose the benefit of an impartial jury.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Clarke v Kmart Corp, 197 Mich. App. 541; 495 N.W.2d 820 (1992)	Source identifying the underlying facts of the case previously set out on appeal.	The court referenced this prior decision as containing the factual background for the present appeal.
Batson v Kentucky, 476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986)	Procedures required when a party challenges peremptory strikes as racially discriminatory.	The court held the trial court failed to comply with Batson procedures by acting sua sponte and by not requiring the plaintiff to make a prima facie showing before demanding race-neutral reasons from the defendant.
Harville v State Plumbing Heating, Inc, 218 Mich. App. 302, 319; 553 N.W.2d 377 (1996)	Confirms that the party opposing a strike must make a prima facie showing of discrimination before the burden shifts to the other party to provide a race-neutral rationale; quotes Batson.	The court relied on Harville to criticize the trial court's failure to require plaintiff to make the required prima facie showing.
Haberkorn v Chrysler Corp, 210 Mich. App. 354, 369; 533 N.W.2d 373 (1995)	Related authority cited alongside Harville concerning the prima facie requirement under Batson.	Cited by the court as part of the line of Michigan authority establishing the prima facie requirement.
People v Williams, 174 Mich. App. 132, 137; 435 N.W.2d 469 (1989)	Holds that the mere fact a party uses peremptory challenges to excuse minority members from the venire is not enough to establish a prima facie case of discrimination.	The court used Williams to support the conclusion that the race of a challenged juror alone does not establish a prima facie case.
People Barker, 179 Mich. App. 702, 706; 446 N.W.2d 549 (1989), aff'd 437 Mich. 161; 468 N.W.2d 492 (1991)	States that a party providing a race-neutral reason need not justify a peremptory challenge to the same degree required for challenge for cause; requires a neutral explanation related to the particular case.	The court applied this principle to conclude the trial court abused its discretion by demanding a higher degree of justification than required and by rejecting the defendant's race-neutral explanations.
Purkett v Elem, 514 U.S. ___; 115 S. Ct. 1769, 1771; 131 L. Ed. 2d 834 (1995)	Holds that unless discriminatory intent is inherent in the reason offered (which need not be persuasive or plausible), the reason is deemed race-neutral.	The court invoked Purkett to underscore that the defendant's explanations, even if not persuasive, could qualify as race-neutral absent inherent discriminatory intent.
United States v Annigoni, 68 F.3d 279 (9th Cir. 1995); later en banc, United States v Annigoni, 96 F.3d 1132 (9th Cir. 1996)	Initially cited by plaintiff for the proposition that denial of a peremptory challenge does not necessarily require a new trial; later en banc reversal is noted.	The court observed that the Ninth Circuit's panel decision cited by plaintiff was subsequently reversed en banc and therefore was not treated as controlling support for a harmless-error argument.
Poet v Traverse City Osteopathic Hosp, 433 Mich. 228; 445 N.W.2d 115 (1989)	Holds that reversal is required where an objectionable juror remained on the jury because a party was forced to use its last peremptory on another juror who should have been removed for cause.	The court relied on Poet to conclude that the error in seating the jurors could not be considered harmless and supported reversal and a new trial.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps strictly following the sequence of events and applicable legal standards set forth in the opinion:

Identification of the trial error: The court observed that the trial judge, apparently on the judge's own initiative, required the defendant to articulate a race-neutral reason for its first peremptory challenge to a black juror even though plaintiff had not objected or invoked Batson. The trial court likewise required race-neutral explanations for two later peremptory challenges to minority jurors.
Prima facie burden: The court held that the trial court erred by not requiring plaintiff to make the requisite prima facie showing of discrimination before shifting the burden to the defendant to provide race-neutral reasons. The court cited Michigan authority (Harville, Haberkorn) and explained that the mere fact of a peremptory challenge against a minority juror (or the juror's race alone) is insufficient to demonstrate a prima facie case (People v Williams).
Evaluation of defendant's race-neutral reasons: Even assuming a prima facie case could have been shown, the appellate court concluded that the trial court abused its discretion in rejecting the defendant's offered reasons as not race-neutral. The court reiterated the applicable standard that the proponent of a peremptory challenge need only articulate a neutral explanation related to the case, and that such a reason need not be persuasive or plausible absent inherent discriminatory intent (People Barker, Purkett).
Specific application to the jurors at issue: The court noted the defendant's articulated reasons included one juror's "career orientation" and two jurors' alleged participation in a prohibited conversation on a topic relevant to the trial. The appellate court found the trial court erred in concluding these reasons were not race-neutral.
Limitation on appellate factfinding: The court explicitly stated it made no findings as to whether the jurors ultimately would have been excused for cause or otherwise; because plaintiff failed to present a prima facie case and the trial court failed to accept race-neutral reasons, the appellate court could not determine if "purposeful discrimination" had been proved.
Harmlessness analysis: The court rejected plaintiff's harmless-error argument. It observed that the Ninth Circuit panel decision relied upon by plaintiff was reversed en banc and further relied on Michigan Supreme Court precedent (Poet) holding that seating an objectionable juror in circumstances that force another party to use its last peremptory on a different juror can require reversal. Based on this authority, the appellate court concluded the error was not harmless.

Holding and Implications

Holding: The Court of Appeals reversed the jury verdict and the trial court's denial of a new trial and remanded the case for a new trial. The court did not retain jurisdiction.

Implications:

Direct effect on the parties: The judgment for the plaintiff is set aside, and the defendant is entitled to a new trial due to the trial court's procedural errors in handling peremptory challenges and failure to follow the Batson framework.
Scope of the decision: The court did not declare a new legal rule; rather, it applied existing precedent regarding (1) the requirement that a prima facie showing of discrimination must be made before a party is required to give race-neutral reasons, and (2) the limited role of appellate review where the trial court improperly rejects race-neutral justifications under the Batson/Purkett standard. The opinion expressly notes it does not decide whether the jurors would ultimately have been dismissed or whether purposeful discrimination was proven.

Opinion authored by Hoekstra, J.; decision reversed and remanded. Panel: Michael J. Kelly, P.J., Hoekstra and E. A. Quinnell, JJ.

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CLARKE v KMART CORPORATION

HOEKSTRA, J.

In this case involving plaintiff's claims of assault and battery, false imprisonment, and discrimination, defendant Kmart Corporation appeals as of right from a jury verdict in plaintiff's favor following a five-day trial in the Kalamazoo Circuit Court and a trial court order denying defendant's motion for a new trial. We reverse and remand for a new trial.

The facts underlying this case are set forth in this Court's earlier decision resolving challenges to summary disposition rulings, Clarke v Kmart Corp, 197 Mich. App. 541; 495 N.W.2d 820 (1992).

Defendant argues that it was deprived of its right to a fair and impartial jury because of errors that occurred in the jury selection process. We agree. Here, the trial court's rulings regarding the seating of minority jurors demonstrate a failure to comply with the procedures outlined in Batson v Kentucky, 476 U.S. 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). The trial court, apparently on its own initiative, required defendant to state a neutral reason for its challenge to the first black juror to be challenged despite the fact that plaintiff had not even raised the issue or made an objection based upon Batson. The trial court likewise required defendant to give race-neutral reasons for challenges to two minority jurors whom defendant unsuccessfully tried to challenge peremptorily later in the proceedings.

To compound the problem, the trial court did not require plaintiff to make a prima facie showing of discrimination, a required first step. It is well-settled that the party opposing the strike must make a prima facie showing of discrimination before the burden shifts to the other party to provide a race-neutral rationale for striking the juror. Harville v State Plumbing Heating, Inc, 218 Mich. App. 302, 319; 553 N.W.2d 377 (1996), quoting Batson, supra; Haberkorn v Chrysler Corp, 210 Mich. App. 354, 369; 533 N.W.2d 373 (1995). In the instant case, the trial court concluded sua sponte, after hearing defendant's race-neutral reason for its first challenge to a minority juror, that a prima facie case had "obviously" been made out because the juror was black. Similarly, the trial court recognized that the two other challenged jurors were minorities because one had a Hispanic surname and the other was "biracial." However, the race of a challenged juror alone is not enough to make out a prima facie case of discrimination. The mere fact that a party uses one or more peremptory challenges in an attempt to excuse minority members from the jury venire, which is at most what was shown in the instant case, is not enough to establish a prima facie showing of discrimination. People v Williams, 174 Mich. App. 132, 137; 435 N.W.2d 469 (1989).

Furthermore, even assuming that plaintiff could have met her burden of establishing a prima facie showing of discrimination, we believe that the trial court abused its discretion in determining that defendant's reasons for seeking dismissal of the challenged jurors were not race-neutral. The party providing the race-neutral reason is not required to justify the exercise of the peremptory challenge to the same degree one must justify a challenge for cause. People Barker, 179 Mich. App. 702, 706; 446 N.W.2d 549 (1989), aff'd 437 Mich. 161; 468 N.W.2d 492 (1991), citing Batson, supra. Rather, the party must articulate a neutral explanation related to the particular case to be tried. Id. The United States Supreme Court has stated that unless a discriminatory intent is inherent in the reason offered, which does not have to be persuasive or even plausible, the reason will be deemed race-neutral. Purkett v Elem, 514 US ___; 115 S Ct 1769, 1771; 131 L Ed 2d 834 (1995). Here, the trial court abused its discretion in determining that defendant's reasons for seeking dismissal of the three jurors at issue, one on the basis of his career orientation and two on the basis of an alleged prohibited conversation discussing a topic relevant to the trial, were not race-neutral.

We make no comment regarding whether the jurors ultimately would have been dismissed. Because plaintiff failed to present a prima facie case, and the trial court failed to accept defendant's race-neutral reasons for dismissal, we are unable to determine whether plaintiff could have proved "purposeful discrimination." Harville, supra at 319.

Finally, plaintiff argues that even if error did occur in the seating of these three jurors, the error was harmless. Plaintiff cites United States v Annigoni, 68 F.3d 279 (CA 9, 1995) for the proposition that the denial of a peremptory challenge to which a party is entitled is not error requiring a new trial because the party did not lose the benefit of an impartial jury. This case has since been reversed by the United States Court of Appeals for the Ninth Circuit en banc. United States v Annigoni, 96 F.3d 1132 (CA 9, 1996). Furthermore, in Poet v Traverse City Osteopathic Hosp, 433 Mich. 228; 445 N.W.2d 115 (1989), our Supreme Court concluded that error requiring reversal occurred when an objectionable juror for whom the plaintiffs would have exercised a peremptory challenge remained on the jury after the plaintiffs were forced to use their last peremptory challenge on a juror who should have been removed for cause. Accordingly, we believe that the error in this case cannot be considered harmless, and defendant is entitled to a new trial.

Reversed and remanded. We do not retain jurisdiction.

CLARKE v. KMART CORPORATION