(concurring) — I concur. I write separately to address why the remedy of reversal is required here.
Our Supreme Court has consistently held that a trial court commits prejudicial error where it erroneously refuses a proper challenge for cause and a party then exhausts all of the peremptory challenges to which it is entitled by statute.1 In McMahon, our Supreme Court explained its rationale for concluding that such an error is prejudicial. Noting that there was both a majority and a minority view on the question, a unanimous court stated:
The rule stated by the majority is that, where the court refuses a challenge for cause, and the party challenging removes the juror by a peremptory challenge and exhausts all his peremptory challenges, while it is error it will not be considered prejudicial unless the record discloses that some juror was kept upon the panel who was not fair and impartial. The theory upon which this rule is based is that twelve jurors having been passed for cause, and nothing being brought out on their examination to tend to show their unfitness as jurors, it must be presumed that they were fair and impartial. But we think that the majority rule entirely overlooks at least one of the purposes of the peremptory challenges allowed by law. If it be conceded that the purpose of the peremptory challenge is merely to allow a juror to be removed when the court has refused to allow him to be excused for cause actually shown, or to remove those who have shown by their answers that they are probably prejudiced or unfair jurors, then the majority rule should govern. However, it seems to us that the right to peremptory challenges is given to enable parties to excuse from the jury those whom they may, for any reason, feel would not *731make fair jurors even though nothing is disclosed on the voir dire.[2]
In United States v. Martinez-Salazar3 the Supreme Court stated that the use of peremptory challenges has been subjected to only one substantive control: “Under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.”4 The Court went on to hold in Martinez-Salazar that neither the federal rule permitting peremptory challenges nor due process is violated by a party exercising all of its peremptory challenges after being erroneously denied a proper challenge for cause.5
The rationale of the Supreme Court appears to be based on the view that the exercise of peremptory challenges after being denied a proper challenge for cause presumably secures to the party the constitutional right to an impartial jury. While this approach is consistent with the “majority” rule discussed in McMahon, it does not address the view based on the broader purpose of peremptory challenges: to allow a party to exclude a potential juror “for which no reason need be given.”6
There is no question here of the use of the peremptory challenges in violation of the proscriptions stated in Batson v. Kentucky7 and its progeny. Fire was entitled, by statute and subject to the Batson proscriptions, to exercise all his peremptory challenges whether or not the reason for the challenge was revealed by voir dire. Only then, could he be assured of the constitutional right to an impartial jury. Thus, while there is no due process right violation here, there is prejudicial error.
*732Accordingly, I concur.
Review granted at 141 Wn.2d 1024 (2000).
State v. Parnell, 77 Wn.2d 503, 463 P.2d 134 (1969); McMahon v. Carlisle-Pennell Lumber Co., 135 Wash. 27, 236 P. 797 (1925) (citing State v. Rutten, 13 Wash. 203, 43 P. 30 (1895); State v. Stentz, 30 Wash. 134, 70 P. 241 (1902); and State v. Moody, 7 Wash. 395, 35 P. 132 (1893)).
McMahon v. Carlisle-Pennell Lumber Co., 135 Wash. 27, 30, 236 P. 797 (1925) (emphasis added).
528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000).
Martinez-Salazar, 528 U.S. at 315, 120 S. Ct. at 781.
Martinez-Salazar, 528 U.S. at 317, 120 S. Ct. at 782.
RCW 4.44.140.
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).