The Michigan Supreme Court has reversed Pellegrino v Ampco System Parking, and has remanded for a new trial on the issue of damages. The court also suggested that the trial court judge’s actions could alert the Judicial Tenure Commission to investigate.
The damages in Pellegrino were high the first time around, more than $15 million.
Shirley Pellegrino died in an April 2003 shuttle bus crash after she and husband Anthony had just returned from a vacation in California. The bus slipped on ice and rammed into a concrete wall. Anthony Pellegrino sustained serious injuries.
According to Justice Stephen J. Markman, who authored the opinion:
Before voir dire, the trial court instructed the attorneys that “it would be a goal of [the court] to have a jury that represented the racial composition of this county.” Subsequently at voir dire, defense counsel sought to peremptorily excuse prospective juror Sylvia Greene, an African-American woman, and plaintiffs’ counsel raised an objection based on Batson, alleging that defense counsel had already peremptorily challenged two prospective jurors on the basis of race. In response, defense counsel argued that he wanted to excuse Greene because she had been widowed two times and was in the process of grieving over the death of her mother. Without making any finding about whether plaintiffs’ counsel had established grounds for denying the peremptory challenge, the trial court denied it, and Greene remained on the jury.
Defense counsel said that he had a legitimate reason for his peremptory challenges, and argued that “plaintiffs’ Batson issue was a ‘red herring’ and unsupported,” wrote Makrman. “He then advised the trial court that he intended to file a motion either to remove Greene or for a mistrial, to which the trial court responded: ‘We have a jury of eight women. Three are African-American. In my view, it adequately represents the community from which this case arises.’ “
The jury awarded $15,613,960.48 to the plaintiff.
Ampco appealed the trial court’s denial of the peremptory challenges. In a split decision the Court of Appeals affirmed.
The majority concluded that although the trial court had not followed Batson procedures, no constitutional error occurred because such an error occurs only when a prospective juror is excused on the basis of race, rather than included on that basis. Thus, the majority opined, the trial court had merely denied defendant the use of a single peremptory challenge, which was subject to a harmless-error analysis. The majority then concluded that the error was, in fact, harmless because the only issue at trial had been damages and the verdict had been unanimous. …
Plaintiffs argue that the trial court’s refusal to allow defendant to exercise a peremptory challenge of prospective juror Greene was consistent with the constitution and court rules because the trial court was merely seeking to ensure that that the jury represented a “fair cross-section of the community.” We reject this argument because the trial court’s actions violated the race-neutral requirements of both the constitution and MCR 2.511(F)(2). Greene’s retention on the jury was predicated on her race, as well as the races of other jurors; each of these racial considerations was paramount in the decision of the trial court to reject defendant’s peremptory challenge. As MCR 2.511(F)(2) makes explicit, a court’s desire to achieve a “balanced, proportionate, or representative jury” does not justify taking race into consideration in selecting a jury. Notwithstanding this express prohibition, the trial court premised its jury-selection decisions on its determination to secure “proportional representation” based on the racial composition of the county in which the trial occurred. In denying defendant’s peremptory challenge, the court expressly took Greene’s race into account and expressly evaluated her race in light of the race of every other juror on the panel. It is hard to conceive of a more flagrant and unambiguous violation of the court rule.
Markman wrote that the trial court’s error was anything but in good faith. Rather, he wrote, he judge “deliberately refused to follow the three-step process required under Batson because it thought that process required the court to ‘indulge’ in ‘race baiting.'”
The trial court judge had stated:
[U]ntil either removed from the bench by the disciplinary committee or ordered to have a new trial, I am going to seek to have this proportional representation on the juries that hear cases in this court. I can’t be clearer. I’m going to do it until I’m ordered not to do it and then when I’m ordered not to do it, then I’ll have to decide what’s next for me.
That was just too much, Markman wrote:
These comments, and the trial judge’s attendant actions taken in conformity in denying defendant’s peremptory challenge, establish a basis for concluding that this is the unusual case in which retrial should occur before a different judge. Moreover, we believe that these same comments and actions could supply a basis for the Judicial Tenure Commission to investigate whether judicial misconduct has occurred should it choose to do so.
Chief Justice Marilyn Kelly, and justices Michael F. Cavanagh, Maura D. Corrigan, and Robert P. Young concurred with Markman.
Justice Elizabeth A. Weaver wrote a short dissent, stating, “I believe that leave to appeal was improvidently granted. I am not persuaded that the decision of the Court of Appeals was clearly erroneous or that defendant has suffered any injustice in this case.
“Further, I do not support the majority’s discussion regarding possible referral of the trial judge to the Judicial Tenure Commission.”
Justice Diane M. Hathaway concurred with Weaver.