Race-Based Peremptory Strikes in Civil Cases
Davis v. Fisk Electric Co., No. 06‑0162. This case about race-based peremptory jury challenges was the only divided opinion with today’s orders. Justice Jefferson wrote the majority opinion for the Court, joined by seven Justices. Justice Brister wrote a concurrence, joined in part by Justice Medina.
The majority relied on Miller-El v. Dretke, 545 U.S. 231 (2005) for much of its analysis. Still, in explaining its holding in this case, the majority concluded that it was not necessary to show a historical pattern of race-based strikes where the record still showed “a statistical disparity” in how jurors were treated based on race as well as “unequal treatment” or jurors who were “comparable” by other measures.
The majority stopped short, however, of ascribing discriminatory motives to counsel:
We acknowledge that peremptory strikes, often based on instinct rather than reason, can be difficult to justify. Miller-El II, 545 U.S. at 252. The trial lawyer’s failure to do so here does not suggest personal racial animosity on his part. See, e.g., Antony Page, Batson’s Blind Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REV. 155, 160-61, 184 (2005) (noting that “research has compellingly demonstrated the existence of unconscious race- and gender-based stereotyping”). A zealous advocate will seek jurors favorably inclined to his client’s position, and race may even serve as a rough proxy for partiality. See, e.g., Batson v. Kentucky, 476 U.S. 79, 139 (1986) (Rehnquist, J., dissenting) (noting that factors like race are often a “proxy” for potential juror bias). But whatever the strategic advantages of that practice, the Constitution forbids it.
The concurrence was critical of the majority’s analysis of the record, as well as its overall approach. In the end, Justice Brister (joined in this part by Justice Medina) advocated ending the system of peremptory strikes:
A majority of this Court could curb peremptory strikes today, as they stem entirely from our Rules of Civil Procedure. The reason we hesitate to do so is that lawyers are tenaciously protective of them, believing they can use these strikes to mold a favorable jury. Study after study has shown this belief to be unfounded. But even if it were true, that reason is not enough: “Peremptory strikes are not intended . . . to permit a party to ‘select’ a favorable jury.”
I presume Justice Brister meant that the practice could be ended by rule-making rather than by the Court striking down its own rule of procedure as being unconstitutional. Batson cases have been relatively rare in the Texas Supreme Court, so this law may develop more through rules or legislative changes.
Mental Anguish Damages Upheld in a Child-Care Case
- Adams v. YMCA of San Antonio, No. 07‑0221 (per curiam). This is a negligent hiring suit brought against the YMCA by a child (and his parents) when a staff member abused the child. The court of appeals had overturned the jury’s award of mental anguish damages. The Texas Supreme Court reversed, holding that the evidence on this record did satisfy the test under Texas law to qualify as future mental-anguish damages. The Court reversed on that question and remanded the YMCA’s other arguments to the court of appeals.
Being Rich (or Poor) Is Not a Tort
- Reliance Steel & Aluminum Co. v. Sevcik, No. 06‑0422 (Brister, J.). The Court held that admission of the defendant’s corporate gross revenues ($1.9 billion per year) was itself harmful error that warranted reversal. The opinion explains that the plaintiff’s theory did not turn on the defendant’s resources, and goes on to express great skepticism that any negligence-based theory would benefit from evidence about the plaintiff’s or defendant’s financial resources.
Does the Appellee Have To Suggest a Remand To Preserve That Option?
Martinez-Partido v. Methodist Specialty & Transplant Hospital, No. 06‑0611 (per curiam). The court of appeals held that it could not remand a case unless one of the two sides requested that remedy. Thus, because the appellee merely sought affirmance, the appellee could not complain when the appellate court later rendered judgment against him.
The Texas Supreme Court disagreed, citing Texas Rule of Appellate Procedure 25.1(c). (( That rule provides that “the appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause” (emphasis mine). )) The Court concluded that “a party seeking affirmance need not request the lesser included relief of remand.”
Takings: Impairment of Access … and Appellate Procedure
State of Texas v. Dawmar Partners, Ltd., No. 07‑0548 (per curiam). In this takings case, the Court held that a landowner could not seek compensation for the diminished use of the remainder (non-taken portion) of a piece of property. The landowner had argued that, due to the taking of a strip of land for a new road, the access to their remaining land would be diminished in a way that prevented it from ever being used as commercial property. Instead, the landowner argued, the land could now only be used as residential property. The Texas Supreme Court ultimately rejected the argument that this sort of change in use could only be compensable if it were actually the result of a “material” dimunition in access. And, the Court found, this record did not show that was met.
Still, the Court held that it could not render judgment for the State on this point because the State had only requested a remand for a new trial, not outright rendition.
Because the jury’s award included noncompensable damages to the remainder, the State argues that we must remand the entire case for a new trial. … In this case, however, the compensation questions submitted to the jury were segregated between the compensable and noncompensable damages. As a result, a new trial is not necessary to remedy the erroneous award of severance damages. … However, because the State seeks only a remand from this Court, we must remand the severance damages issue to the trial court even though the record would otherwise support a rendition of a judgment in the State’s favor on that claim.
At least on that question of appellate procedure, this case is a bookend with today’s decision in Martinez-Partido. This case teaches that, if you’re the appellant, you should make sure to ask for rendition if there’s any possibility you can obtain it. Martinez-Partido teaches that the appellate court can still remand even if the appellant doesn’t request it.
Rehearing: Small Changes in David J. Sacks, P.C. v. Haden
- *David J. Sacks, P.C. v. Haden*, No. 07‑0472 (per curiam) (on reh’g). The Court granted the motion for rehearing, changing its judgment to now remand the other issues to the court of appeals instead of impliedly rejecting them. The prior decision was reported here.