Chavous v. Brown , 302 S.C. 308 ( 1990 )

Finney, Justice, dissenting:

I respectfully dissent. In my opinion, the reasoning and conclusions of the South Carolina Court of Appeals are based upon sound legal precedent, and I would affirm its holding.

The majority asserts that the dispositive question is whether the exercise of peremptory strikes by a private attorney in a civil case qualifies as state action. In my view, the dispositive question is whether a state court’s approval of facially racially motivated peremptory strikes by a private attorney in a civil action constitutes state action.

“That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.” Shelley v. Kraemer, 334 U.S. 1, 14, 68 S. Ct. 836, 843, 92 L. Ed. 1161 (1948). I find the trial judge’s involvement in the jury selection process sufficiently substantial to be considered “state action.”¹ “Racial injustice has no more place in the courtroom on the days the court is conducting civil trials than it does on the days it conducts criminal trials.” Chavous v. Brown, 299 S.C. 398, 402, 385 S.E. (2d) 206, 209 (Ct. App. 1989).

1 The United States Eleventh Circuit Court of Appeals held that Batson applies in civil actions. Fludd v. Dykes, 863 F. (2d) 822 (11th Cir. 1989), reh’g. denied, 873 F. (2d) 300 (11th Cir. 1989). The United States Supreme Court denied certiorari. Tiller v. Fludd, — U.S. —, 110 S. Ct. 201, 107 L. Ed. (2d) 154 (1989).