Opinion
SC: 163750 COA: 351159
09-16-2022
Order
On order of the Court, the application for leave to appeal the September 2, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J. (concurring).
I concur in the order denying leave to appeal, but write to clarify one aspect of the Court of Appeals opinion. In this case, plaintiffs sued after the death of their seven-month-old daughter. During voir dire, defense counsel exercised a peremptory challenge against the only Black person on the panel. The prospective juror was also six and a half months pregnant. Plaintiff raised a challenge under Batson v Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), pointing out that defense counsel was excluding the only Black person on the panel. Defense counsel denied that the prospective juror was being excluded because of her race, stating, "It's really simple.... She's pregnant." Plaintiff's counsel responded that that could also be discriminatory because only women can become pregnant. Defense counsel clarified the rationale was more precisely that the prospective juror was an expectant parent. Defense counsel explained that because the case involved the death of an infant, their strategy was to exclude prospective jurors who were parents of young children, regardless of the gender of the juror. The trial court accepted defense counsel's explanation as rational and nondiscriminatory.
"A Batson error occurs when a juror is actually dismissed on the basis of race or gender." People v Bell , 473 Mich. 275, 293, 702 N.W.2d 128 (2005) (opinion by CORRIGAN , J.). See also J.E.B. v Alabama ex rel T.B. , 511 U.S. 127, 114 S.Ct. 1419 (1994). The opponent of a peremptory challenge must first make a prima facie showing of discrimination by establishing that:
(1) [the prospective juror] is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise an inference that the proponent of the challenge excluded the prospective juror on the basis of race. [ People v Knight , 473 Mich. 324, 336, 701 N.W.2d 715 (2005).]
If the prima facie showing is made, the burden shifts to the proponent of the peremptory challenge to articulate a nondiscriminatory explanation. People v Kabongo , 507 Mich. 78, 89, 968 N.W.2d 264 (2021) (opinion by ZAHRA , J.). Finally, the court must determine whether the explanation is mere pretext. Knight , 473 Mich. at 337-338, 701 N.W.2d 715.
I disagree with the Court of Appeals’ suggestion that the prospective juror was properly excluded because she would decide the case based on her emotion rather than logic. Excluding pregnant women as a class on the basis that they could not be impartial would fall into exactly the trap the United States Supreme Court has warned of: "We shall not accept as a defense to gender-based peremptory challenges ‘the very stereotype the law condemns.’ " J.E.B. , 511 U.S. at 138, 114 S.Ct. 1419 (citation omitted). However, I concur in the denial of leave to appeal because the defendant's explanation of excluding parents of young children makes sense in the context of this trial and does not run afoul of Batson . Further, there is evidence in the record to support this explanation because all but one of the prospective jurors were asked whether they had children and the ages of their children.
Welch, J., joins the statement of Cavanagh, J.
Clement, J. (dissenting).
I would not deny leave and would instead remand to the Court of Appeals for it to consider whether our ruling in Rouch World, LLC v Dep't of Civil Rights , ––– Mich. ––––, ––– N.W.2d ––––, 2022 WL 3007805 (2022) (Docket No. 162482), construing the phrase "because of ... sex" in MCL 37.2302(a), should inform its interpretation of the phrase "on the basis of ... sex" in MCR 2.511(F)(1).