47 Fla. L. Weekly D1416b
JAMES SEADLER, Appellant, v. MARINA BAY RESORT CONDOMINIUM ASSOCIATION, INC., d/b/a MARINA BAY RESORT, Appellee. 1st District. Case No. 1D19-0850. June 29, 2022. On appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge. Counsel: Charles F. Beall, Jr., and Haley J. VanFleteren of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant. Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellee.ON APPELLANT’S MOTION FOR REHEARING OR,IN THE ALTERNATIVE, FOR CERTIFICATIONTO THE SUPREME COURT[Original Opinion at 46 Fla. L. Weekly D938a]
(PER CURIAM.) We deny the motion. However, on our own, we certify conflict between our decision in this case and the following decisions of other district courts: Kochalka v. Bourgeois, 162 So. 3d 1122, 1126 (Fla. 2d DCA 2015) (characterizing jury selection errors in a civil case as “per se errors” that “are not subject to any harmful error analysis and instead require a new trial whenever there is a showing that an error occurred”); Tizon v. Royal Caribbean Cruise Line, 645 So. 2d 504, 506 (Fla. 3d DCA 1994) (“It is reversible error [in a civil case] to deny a challenge for cause, thereby forcing a party to ‘waste’ a peremptory challenge to remove an objectionable juror and forcing him to keep another objectionable juror on the panel because all of the challenges were used.”); Weinstein Design Grp., Inc. v. Fielder, 884 So. 2d 990, 996 (Fla. 4th DCA 2004) (adopting principle in civil case that “it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges,” such that if the party “makes a request for additional peremptory challenges which is denied . . . an appellate court will reverse and grant a new trial”); Gootee v. Clevinger, 778 So. 2d 1005, 1009-10 (Fla. 5th DCA 2000) (“It is reversible error [in a civil case] to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.”).
Motion DENIED; CONFLICT CERTIFIED. (OSTERHAUS and JAY, JJ., concur; TANENBAUM, J., concurs with opinion.)
(TANENBAUM, J., concurring.) James Seadler of course disagrees with the reasoning behind our disposition of his appeal. We rejected his contention that he automatically was entitled to a new trial because he had to use a peremptory challenge to remove a potential juror that he thought should have been removed for cause (an issue he then “preserved” by exhausting the remainder of his peremptories). In doing so, we did not just reflexively look at whether there was cause to strike the potential juror such that the trial court would have harmfully erred by failing to. We recognized that the arguably biased juror did not serve on the jury anyway, so we looked instead at the specific circumstances of the jury selection to determine whether the trial court’s failure to strike the potential juror for cause “resulted in a miscarriage of justice.” § 59.041, Fla. Stat. We affirmed, holding that even if the juror should have been stricken for cause, there was no miscarriage of justice because Seadler still would have had a juror he wished to exclude serving on the jury regardless of whether the cause challenge was denied.
The main premise underlying Seadler’s request for rehearing is that a party’s being forced to “waste” a peremptory challenge on a potential juror who should have been stricken for cause is itself a miscarriage of justice — provided the party otherwise exhausts his allotment of challenges, requests another one, and has that request denied. As the argument goes, a trial court’s erroneous failure to strike a potential juror for cause cannot be harmless because it effectively reduces the number of peremptory challenges that have been made available to the party. Seadler contends that his having to use a peremptory challenge to remove the objectionable juror discussed in our disposition opinion — rather than on another potential juror that he did not want for reasons known only to Seadler — standing alone should have been enough to get him a new trial.
This principle, however, finds its home in criminal law jurisprudence. Seadler relies on a line of cases that ends most recently with Matarranz v. State, 133 So. 3d 473 (Fla. 2013), and traces back through those like Busby v. State, 894 So. 2d 88 (Fla. 2004), and Hill v. State, 477 So. 2d 553 (Fla. 1985). From this line, the other district courts have extrapolated concepts relating to the right to a fair and impartial jury in a criminal case, and based on those concepts, found that in a civil case, an improper denial of a for-cause challenge necessarily results in the denial of a similar right related to the availability of peremptory challenges to remove potential jurors other than for cause.
In affirming the underlying judgment and now denying Seadler’s request for rehearing, this court reaches a different conclusion. Our conclusion is what the written law requires, but it also is consistent with the common-law usage of peremptory challenges as they were understood at the time the Florida Constitution was adopted. I write separately to emphasize how there is no historical support for finding an equivalency between the peremptory challenge made available in a Florida criminal trial and one available in a civil trial. In fact, the approach reflected in the decisions of the other district courts misses the unique historical purpose and role behind the peremptory challenge in the criminal context. The challenge does not have the same historical roots — in fact, the challenge did not exist at all — at English common law for civil trials. That history cabins to criminal trials alone the special treatment the Florida Supreme Court has given to peremptory challenges. Equally important is this point: In Florida there is a substantive right to peremptory challenges in criminal trials (established by statute); no similar right exists for civil trials. Given the lack of an historical basis for the peremptory challenge in a civil trial context, and absent a constitutional or statutory right to such a challenge, we could not say that having to “waste” a challenge provided merely by procedural rule provides a legal basis to find a miscarriage of justice.I.
Let me start by stating that there is no question both of the parties to the underlying civil suit were entitled to an impartial jury. For everyone, “[t]he right of trial by jury shall be secure to all and remain inviolate.” Art. I, § 22, Fla. Const. The supreme court has said that “[t]he 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.” State v. Silva, 259 So. 2d 153, 160 (Fla. 1972). “[A]nything less than an impartial jury is the functional equivalent of no jury at all.” R.J. Reynolds Tobacco Co. v. Allen ex rel. Allen, 228 So. 3d 684, 693 (Fla. 1st DCA 2017) (Osterhaus, J., dissenting) (quoting City of Miami v. Cornett, 463 So. 2d 399, 402 (Fla. 3d DCA 1985), dismissed, 469 So. 2d 748 (Fla. 1985)).
Seadler’s main argument for a new trial in this case, though, does not turn on whether one of the jurors on the panel was not impartial. He used one of his peremptories to strike the juror he challenged for cause, so that potential juror never served at his trial. Rather, Seadler’s argument turns on the significance of a peremptory challenge in a civil trial, asserting that the right to peremptory challenges is critically important to effectuate the right to an impartial jury. Seadler bases his motion for rehearing on the following from the supreme court:
Given that the requirements of preservation were satisfied, Matarranz would suffer a violation of his due process rights if the Juror should have been, but was not, removed for cause. “Florida . . . adhere[s] to the general rule that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” Hill, 477 So.2d at 556. “The value of peremptory challenges is that they are intended and can be used when defense counsel cannot surmount the standard for a cause challenge.” Busby v. State, 894 So.2d 88, 100 (Fla.2004). This value is destroyed if counsel is forced to use a peremptory challenge on a juror who should have been removed for cause. See Hill, 477 So.2d at 556 (noting that “such error cannot be harmless because it abridged appellant’s right to peremptory challenges by reducing the number of those challenges available [to] him”). . . .
Matarranz, 133 So. 3d at 483.
There are two problems with relying on Matarranz in this way. First, that case and the line of cases that it draws from address criminal trials, which historically have been treated differently with respect to jury selection because the consequences of such a trial were much more severe. Second, unlike in a criminal trial, there is no constitutional or statutory right to a peremptory challenge in a civil trial. The other district courts, which nevertheless apply the principle stated in Matarranz in the context of civil trials, fail to address these important — I say dispositive — distinctions. After all, our charge on appeal is to determine whether an asserted error resulted in a “miscarriage of justice,” and I frankly do not see how we could just assume an equivalency of significance between a party’s being “forced” to use a peremptory in a criminal trial and the same in a civil trial. Our refusal to grant rehearing is an historically defensible recognition that the basis for the peremptory in each context differs in such a way that bears on whether the erroneous failure to strike a potential civil juror necessarily is harmful within the meaning of section 59.041.II.
At common law in England, there was considerable overlap in how potential jurors could be challenged in criminal and civil trials. In both contexts, there were the “challenges to the array” and the “challenge to the polls.” 3 WILLIAM BLACKSTONE, COMMENTARIES *358 (Thomas M. Cooley ed., 3d ed. rev.) (1884) (describing challenges with respect to civil juries); see also 4 BLACKSTONE at *352 (noting that the same two types of challenge may be asserted with respect to criminal juries). A challenge to the array was “an exception to the whole panel” based on the “partiality or some default in the sheriff, or his under-officer who arrayed the panel.” 3 BLACKSTONE at *359. A challenge to the polls is an objection to a particular juror based on his “fitness” to serve. Id. at *361, *364. A juror would have been considered unfit and subject to challenge “for suspicion of bias or partiality,” for some legal disability, or for a criminal conviction “that affects the juror’s credit and renders him infamous.” Id. at *361-363.1
These challenges were “styled challenges for cause; which may be without stint in both criminal and civil trials.” 4 BLACKSTONE at *353. That, though, is where the overlap in challenges stops. In contrast to the for-cause challenges available in both types of trials, Blackstone mentions the peremptory challenge only in his discussion of the criminal trial, as so: “But in criminal cases, or at least in capital ones, there is, in favorem vitæ, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without shewing [sic] any cause at all; which is called a peremptory challenge.” 4 BLACKSTONE at *353. Blackstone notably does not include the peremptory challenge in his catalog of jury challenges for civil trials.
Blackstone characterized the provision for peremptories in these criminal cases as “full of that tenderness and humanity to prisoners for which our English laws are justly famous.” Id. at *353. Presumably, he said so because in England in the seventeenth and eighteenth centuries, the typical punishment for conviction of a felony was death. Blackstone, in turn, gives two reasons behind providing a “prisoner” (i.e., a criminal defendant) the benefit of peremptory challenges. For one, because of the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,” Blackstone explains that the peremptory ensured “a prisoner (when put to defend his life) [had] a good opinion of his jury, the want of which might totally disconcert him.” 4 BLACKSTONE at *353. Under the law at the time, the prisoner should not have to “be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.” Id. For the other reason, Blackstone makes a related point: “Because upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment.” Id. English common law allowed the prisoner to set that juror aside anyway, through the peremptory challenge, “to prevent [such] ill consequences.” Id.
We easily can see from this history that the peremptory challenge finds its origin in England’s common-law heritage regarding criminal trials; there is no such tradition for civil trials. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 639 (1991) (O’Connor, J., dissenting). The challenge stems from the ancient law’s intention to make that criminal trial — particularly where life is on the line — more humane from the perspective of the defendant.2 This history, then, counsels against any equivalency between the supreme court’s harmful error analysis in criminal cases like Matarranz, Busby, and Hill and an analysis to be used in a civil trial context where a party has to expend a peremptory to strike a potential juror who should have been stricken for cause. As significant as the stakes may be in a civil trial, they obviously still do not compare to the liberty at stake in a criminal trial. Moreover, the parties in a civil trial have a parity that does not exist between the parties in a criminal trial, where a defendant faces off against the sovereign. All of this to say that, in the light of the unique history behind the criminal peremptory challenge, there is no readily apparent, logically cogent rationale for taking the supreme court’s “reversible error” analysis with regard to the use of that challenge in a criminal trial context, and simply applying it — without further consideration — in the civil trial context.III.
Add to this historical consideration the fact that the supreme court’s “reversible error” analysis is firmly rooted in the existence of a defendant’s right to a peremptory challenge in a criminal trial. That is a serious problem for someone trying to apply that analysis in a civil trial context because in Florida, there is no right to a peremptory challenge in a civil trial. Let me first observe that even in the criminal context, there is no constitutional right to a peremptory challenge; any right to such a peremptory has to be statutorily based. See Stilson v. United States, 250 U.S. 583, 586 (1919) (“There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured.”); Gray v. Mississippi, 481 U.S. 648, 663 (1987) (“Peremptory challenges are not of constitutional origin.”); Smith v. State, 59 So. 3d 1107, 1111 (Fla. 2011) (acknowledging that “peremptory challenges are not themselves constitutionally guaranteed at either the state or federal level”); Deviney v. State, 322 So. 3d 563, 584 (Fla. 2021) (Lawson, J., concurring in part) (“Additionally, in Florida, the use of peremptory challenges in criminal trials is a statutory creation, as the Florida Constitution does not establish a defendant’s right to peremptories. . . . [T]here is no federal or state constitutional right to peremptory challenges.”); Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“But we reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. We have long recognized that peremptory challenges are not of constitutional dimension.”); id. at 89 (explaining that “peremptory challenges are a creature of statute,” and that “it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise”).
Sure enough, there is a statute that grants a criminal defendant the right to peremptory challenges. See § 913.08, Fla. Stat. The supreme court repeatedly has given special significance to this statutory right. See Smith, 59 So. 3d at 1111 (characterizing purpose of a peremptory challenge as “the effectuation of the constitutional guaranty of trial by an impartial jury,” such that the challenge is “one of the most important of the rights secured to the accused” (internal quotations and citations omitted)). Decades earlier, the court stated something similar as follows:
Under the Constitution of the United States and the State of Florida the defendant in a criminal case is guaranteed the right to a trial by an impartial jury and it is to effectuate this guaranty that he may reject a certain number of those who are called to the jury box without giving his reason for not wishing them to pass upon his guilt or innocence. By this means he may escape the judgment of those whom he may consider prejudiced against him but whom he may not be able to show disqualified for causes defined by statute.
Carroll v. State, 190 So. 437, 438 (Fla. 1939). Along these lines, then, the following has been the rule — again, in criminal cases — in Florida for nearly a century, if not longer:
In a case where an objectionable juror is challenged by the defendant for cause, and the court wrongfully overrules the challenge, and the defendant uses one of his peremptory challenges to excuse the objectionable venireman, the record should show that the jury finally impaneled contained at least one juror objectionable to the defendant, who sought to excuse him peremptorily, but the challenge was overruled.
Young v. State, 96 So. 381, 383 (Fla. 1923).
It bears repeating, however, that the principle reflected in the preceding two quotes works only if there is a substantive right that exists in the first place to be impaired by the trial court’s error. That is, with respect to the peremptory, the Legislature must create a right to it before it can be a basis for harmful error. The United States Supreme Court did once note that the legislatively granted right to a peremptory challenge “is one of the most important of the rights secured to the accused,” so “denial or impairment of the right is reversible error without a showing of prejudice.” Swain v. Alabama, 380 U.S. 202, 219 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986) (internal quotation and citation omitted). It later observed, though, that a “denial or impairment” of this right occurs only when “the defendant does not receive that which state law provides.” Ross, 487 U.S. at 89.
And there is the rub. Florida law provides nothing in the way of peremptories for civil trials. Since 1973, there has been no statutory right at all to peremptory challenges in a civil trial. See ch. 73-333, § 24, at 840, Laws of Fla. (repealing the statute providing for peremptory challenges in civil trials); cf. § 53.011, Fla. Stat. (1971) (entitling each party in a civil trial to three peremptory challenges). The only reason we are talking about peremptories at all in this case is because there is a judicially adopted civil rule that allows for peremptory challenges. See Fla. R. Civ. P. 1.431(d) (“Each party is entitled to 3 peremptory challenges of jurors . . . .”). Because there is no constitutional right to any peremptory challenges, this allowance for peremptories in civil trials as a matter of procedure does not effectuate a constitutional right and cannot amount to a substantive right. See Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975) (“Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions.”); see also Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 1993) (“While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights.”).
In a civil trial, then, the peremptory challenge at best is a procedural grace. Without the historical roots that the criminal peremptory can claim, the civil peremptory could be viewed only from an administrative perspective, as a tool to promote judicial economy. That is, as a procedural matter, the peremptory challenge serves as a “backstop” or “failsafe” in a civil trial to conserve judicial resources and limit the likelihood a case will not be sent back for a new trial. It does this by establishing a mechanism by which a prospective juror who may not be impartial can still be excluded from the trial panel, notwithstanding a trial court’s error in failing to strike that juror for cause. Cf. United States v. Martinez-Salazar, 528 U.S. 304, 315-16 (2000) (“In choosing to remove Gilbert rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury.”); id. at 313 (explaining that when a defendant uses a peremptory challenge “to remove a juror who should have been excused for cause,” he “received all that state law allowed him” as well as the fair trial that the federal constitution guarantees).* * *
Seadler received the three peremptory challenges provided by rule, and he used them as intended. It is fair to say that his use of the peremptory challenge in the breach — to ensure a potential juror suspected of bias is excluded at any cost, even if the trial court failed to do so — was the fulfillment of the purpose behind the procedural challenge. It arguably saved the case from having to be tried again. At all events, in the absence of a substantive right to that challenge — and no historical basis for considering it to be of fundamental importance — there was no legal authority for us to conclude that Seadler’s use of a peremptory to strike the juror he found objectionable on appeal, by itself, was a miscarriage of justice.
Our fact-specific review of the process by which the jury was selected in Seadler’s case revealed no irregularity that deprived him of the fair trial to which he was entitled. This we explained at length in our opinion on the merits, and we did not overlook any controlling law. Seadler can rest assured that we were well aware of the criminal cases that he cites in his motion for rehearing. The history behind the peremptory, which I have done my best to describe here, demonstrates that the operative principle stated in those cases has no application outside the context of the criminal trial — at least for as long as there is no statutory right to a peremptory challenge in a civil trial.
1In addition to these challenges, a potential juror could ask to be excused based on various statutory exemptions. Id. at *364.
2For this reason, the king did not have access to the same type of challenge. Id. at *353.* * *