Heyward v. Public Housing Administration Appellants' Brief

    No. 90-1

In The

Su prem e C ourt of tfje A m tell g>tate£
O ctober Te r m , 1990

City op Little Rock, et a l,
Petitioners,

v.

Reather Reynolds, as Administratrix of the 
Estate of John Willie Reeves, deceased, 

and in her own behalf,
Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Eighth Circuit

BRIEF IN OPPOSITION

Arkie Byrd
Mays & Crutcher, P.A. 
415 Main Street 
Little Rock, AR 72201

Perlesta A. Hollingsworth 
Hollingsworth Law F irm 
415 Main Street 
Little Rock, AR 72201

Clyde E. Murphy*
99 Hudson Street 
Suite 1600
New York, N.Y. 10013 
(212) 219-1900

Counsel for Respondents

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...............  ii
STATEMENT OF THE C A S E ...............  1

ARGUMENT ............................ 3
THE DECISION OF THE EIGHTH CIRCUIT 
NARROWLY APPLIES THIS COURT'S 
DECISION IN BATSON, AND PRESENTS NO 
CONFLICT WITH THE DECISIONS OF THE 
FIFTH AND ELEVENTH CIRCUITS . . .  3

THE DECISION OF THE EIGHTH CIRCUIT 
IS A CONSISTENT AND REASONABLE 
APPLICATION OF THIS COURT'S HOLDINGS 
APPLYING THE EQUAL PROTECTION CLAUSE 
TO DISCRIMINATORY JURY SELECTION 8

C O N C L U S I O N .........................  12

1



TABLE OF AUTHORITIES

Cases Page

Batson v. Kentucky, 476 U.S.
79 ( 1 9 8 6 ) ............. 1, 4, 7-9, 11

Carter v. Jury Commission 
of Green County,

396 U.S. 320 (1970) ........ 9
Edmonson v. Leesville Concrete Co,

895 F .2d 218 (5th Cir. 1990) 3, 5, 6
Ex parte Virginia, 100 U.S.

339 (1879) ....................... 8

Fludd V. Dykes, 863 F.2d 822
(11th Cir. 1989) ........... 3 , 5-7

Neal v. Delaware, 103 U.S.
370 (1880) ....................... 7

Reynolds v. City of Little Rock,
893 F .2d 1004

(8th Cir. 1990) . 2, 4, 5, 9-11
Strauder v. West Virginia, 100 U.S.

303 (1879) ...................  7, 9

Thiel v. Southern Pacific Co.,
328 U.S. 217 ( 1 9 4 6 ) .............. 10

Virginia v. Rives, 100 U.S.
313 (1879) ................ . 7

ii



No. 90-1

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1990

City of Little Rock, et al.,
Petitioners,

v.
Reather Reynolds, as Administratrix of the 
Estate of John Willie Reeves, deceased, 

and in her own behalf,
Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The Petitioner in this case asks the 

Court to consider the application of 

Batson v. Kentucky, 476 U.S. 79 (1986), in 
the context of civil litigation, where, as 
here, a state defendant has used its



2
peremptory challenges to strike the only 
African Americans on the venire.

The United States Court of Appeals for 
the Eighth Circuit unanimously held that 

"a state actor may not exercise peremptory 
challenges with the intent to exclude 
black people from the jury, whether in a 
criminal or a civil trial". Reynolds v. 
City of Little Rock, 893 F.2d 1004 (8th 
Cir. 1990), App. 21. The petitioner seeks 

review of this holding, asserting that the 
panel's judgment was in error.

The text of the Court of Appeals 
decision is reproduced in the Appendix of 
the Petition For Writ of Certiorari.



3

ARGUMENT
Reasons For Denying The Writ

I.

THE DECISION OF THE EIGHTH CIRCUIT 
NARROWLY APPLIES THIS COURT'S DECISION 
IN BATSON, AND PRESENTS NO CONFLICT WITH 
THE DECISIONS OF THE FIFTH AND ELEVENTH

CIRCUITS
The Petition of the City of Little 

Rock, et al., presents only one 
substantive reason supporting their 
Petition for Writ of Certiorari, to wit, 

their assertion of a conflict between the 
decisions of the Eighth Circuit below, and 
the Fifth Circuit in Edmonson v. Leesville 
Concrete Co, 895 F.2d 218 (5th Cir. 1990).

However, unlike the decision of the 

Fifth Circuit in Edmonson, or the decision 
of the Eleventh Circuit in Fludd v. Dykes, 

863 F .2d 822 (11th Cir. 1989), cert.
denied sub. nom Tiller v. Fludd, 110 S.Ct.



4
201 (1989), the decision of the Eighth

Circuit does not attempt to extend the
holding of Batson to all civil litigation,
regardless of the parties. Rather, the
narrow issue decided by the Eighth Circuit
in this case is that "a state actor may

not exercise peremptory challenges with
the intent to exclude black people from
the jury, whether in a criminal or a civil
trial". Reynolds v. City of Little Rock,

App. 2. Here the Court of Appeals

specifically concluded that "Batson

applies to the conduct of a governmental
litigant in a civil trial". id.

The more natural reading of Batson is 
that its rule of non-discrimination 
applies only to governmental actors, 
without distinguishing criminal and 
civil legal proceedings.

Reynolds v. City of Little Rock, App. 10.
Indeed the Court of Appeals underscored

this view by specifically noting its



5
refusal to consider the situation, now

posed by the petitioner, which was not
presented by the facts before it, and was

rejected by the en banc court in Edmonson
v. Leesville Concrete Co., 860 F.2d 1308
(5th Cir. 1988), vacated by order granting
rehearing en banc, 860 F.2d 1317 (5th Cir.

1989) , trial court affirmed en banc, 895
F .2d 218 (5th Cir. 1990):

. . . We express no view on whether the 
action of the court alone, in a case 
involving no governmental litigants, 
can supply the necessary element of 
governmental action.

Reynolds v. City of Little Rock, App. 10.

Contrary to the assertions of the 
Petitioner, the Court of Appeals decision 

below presents no conflict with either 

Edmonson or Fludd. In Edmonson, the Court 

of Appeals specifically refrained from 
considering the issue decided by the



6
Eighth Circuit here:

We have no occasion to consider the 
situation presented where the state 
appears as a civil litigant.

Edmonson v. Leesville Concrete Co., Inc,

895 F .2d 218, 222 n.10.
As reiterated by the en banc panel, the

essence of the Fifth Circuit's opinion is
the complete lack of a governmental actor,

thus Edmonson plainly stated the issue as:

"[W]hether the exercise of peremptory 
challenges by a private litigant in a 
civil action pending in federal court 
is a government action, to which the 
Fifth Amendment applies, or a private 
action, which the Constitution does not 
reach." 860 F.2d at 1310. The answer 
to it is dispositive of the appeal; for 
if governmental action is not present, 
then the courts hold no warrant to 
interfere, in the name of equal 
protection, with the system of civil 
peremptory challenges.

Edmonson, 895 F.2d at 220.
Likewise, while Fludd v. Dykes, 863

F . 2d 822 (11th Cir. 1989), arguably



7
involves state actors as litigants2, the 

decision in the case was plainly not 

premised on the status of the litigants. 

Rather the essence of Judge Tjoflat's 

opinion for the Eleventh Circuit was that 
it is the action of the trial court that 
constitutes the state action which makes 
the Equal Protection clause, and therefore 
Batson, applicable to civil litigation.

When blacks are excluded from jury 
service on account of their race, the 
Supreme Court has long recognized that 
the discriminatory actor is the trial 
court - even when the decision to 
exclude blacks may have originated in 
another state entity, such as the 
legislature.

Fludd, 863 F . 2d at 828. Citing Strauder 

v. West Virginia, 100 U.S. 303, 312, 25 

L.Ed. 664 (1879); Virginia v. Rives, 100 

U.S. 313, 322, 25 L.Ed. 667 (1879); Neal

The defendants in the lawsuit were 
a police officer and his supervisor, the 
Sheriff of Richmond County, Georgia.



8
v. Delaware, 103 U.S. 370, 394, 397, 26 

L.Ed. 567 (1880); and Ex parte Virginia, 
100 U.S. 339, 347 25 L.Ed. 676 (1879), "A 
state acts by its legislative, its 

executive, or its judicial authorities". 
(Emphasis added)

II.
THE DECISION OF THE EIGHTH CIRCUIT 

IS A CONSISTENT AND REASONABLE APPLICATION 
OF THIS COURT'S HOLDINGS APPLYING THE 

EQUAL PROTECTION CLAUSE TO DISCRIMINATORY 
JURY SELECTION

The essence of the Petitioners' 
argument is the assertion that "critical 
distinctions between civil and criminal 

trials" prevent the extension of the 

Batson rule to civil litigation. This 
assertion is not only without merit, but 

is contradicted by prior holdings of this 
Court, and was directly and reasonably



9
addressed by the unanimous panel below.

We find this distinction 
unpersuasive. It is certainly true 
that Batson was a criminal case 
governed by the Sixth Amendment. 
However, the Court explicitly 
declined to discuss the merits of 
Batson's Sixth Amendment arguments, 
and instead focused exclusively on 
the application of equal-protection 
principles. 476 U.S. at 84-85 n.4. 
Unlike the Sixth Amendment, the 
Equal Protection Clause of the 
Fourteenth Amendment does not 
contain any latent distinctions 
between criminal and civil legal 
process.

Reynolds v. City of Little Rock, App. 9.
The panel likewise rejected the 

Petitioners' assertion that the unique 
circumstances of the criminal defendant 

justifies a limitation on the application 
of Batson. Rather, relying on this 
Court's holdings in Strauder v. West 
Virginia, 100 U.S. 303 (1880), and Carter

v. Jury Commission of Green County, 396 

U.S. 320 (1970), the Eighth Circuit

observed that these cases stress that the



10
private parties are not the only victims 

of racial discrimination on juries. 
Reynolds v. City of Little Rock, App. 11- 
12 .

These considerations apply as much 
in a civil suit against a governmental 
entity as to a government prosecution 
of an individual. In this case, a jury 
has had to arrive at a judgment in a 
traumatic episode of a police shooting 
of a disturbed black man. The
community - particularly the black 
community - has an interest in ensuring 
that the government has not purposely 
excluded black people from the jury, as 
much as though Willie Reeves had 
survived the event and now stood trial 
for the crime of assault. We conclude 
that the City Attorney did have an 
obligation to justify his use of 
peremptories in this civil case.

id. See also, Thiel v. Southern Pacific

Co., 328 U.S. 217, 220 (1946) ("The
American tradition of trial by jury,

considered in connection with either

criminal or civil proceedings, necessarily
contemplates an impartial jury drawn from
a cross section of the community.")



11 -
While noting Batson's holding that 

'"[t]he harm from discriminatory jury 
selection extends beyond that inflicted on 
the defendant and the excluded juror to 
touch the entire community." Batson, 476 
U.S. at 87',3 the Eighth Circuit, 

nevertheless only narrowly extended the 

reach of that decision. Refusing to apply 
Batson to all civil litigation, regardless 
of the circumstances and regardless of the 
parties, the Eighth Circuit's holding is a 
consistent and reasonable application of 
this Court's holdings on the application 
of Equal Protection principles to the 

issue of racially motivated exclusion of 

African Americans from service on juries.

3 Reynolds, App. 12,



12
CONCLUSION

For all the foregoing reasons, the 
Petition for Writ of Certiorari should be 

denied.

Respectfully submitted,

ARKIE BYRD
Mays & Crutcher, P.A. 
415 Main Street 
Little Rock, AR 72201

PERLESTA A. HOLLINGSWORTH
Hollingsworth Law Firm 
415 Main Street 
Little Rock, AR 72201

CLYDE E. MURPHY*
99 Hudson Street 
Suite 1600
New York, N.Y. 10013 
(212) 219-1900

Counsel for Respondents
* Counsel of Record