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THE STATE OF SOUTH CAROLINA
In The Court of Appeals
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Michael Alston, Appellant,

Black River Electric Cooperative, Respondent.

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Appeal From Sumter County
J. Ernest Kinard, Jr., Circuit Court Judge
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AFFIRMED
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Robert P. Wood, of Rogers, Townsend & Thomas, of Columbia, for appellant.

Hoover C. Blanton and Pope D. Johnson, III, both of McCutchen, Blanton, Rhodes & Johnson, of Columbia, for respondent.

CONNOR, J. : Michael Alston sued Black River Electric Cooperative, alleging Black River's negligence caused a fire at his house. A jury returned a verdict in favor of Black River. Alston appeals, arguing the trial court erred in refusing to strike all jurors who were members of Black River for cause. We affirm.

Alston owned a lot that was served by Black River. While his house was under construction, Alston asked Black River to move a power line that crossed over it. The power line was never moved. During a storm on November 17, 1994, the power line broke, causing a fire which destroyed the house.

During voir dire, seven jurors on the twenty juror strike list identified themselves as customers of Black River. Two of the three jurors on the alternate strike list were Black River customers. Alston moved to strike those jurors for cause. The trial judge refused. However, Alston did not attempt to prove actual bias through further voir dire.

Alston subsequently struck two jurors who were Black River customers and two jurors who were not. Black River struck one Black River customer. Two of the three jurors on the alternate strike list were Black River customers, and Alston struck the alternate who was not a customer. Four Black River customers ended up serving on the jury. The alternate did not participate.

DISCUSSION

The only issue on appeal is whether the trial court erred in refusing to excuse Black River customers for cause.

Section 14-7-1020 of the South Carolina Code grants the trial judge discretion to disqualify jurors for cause. It provides:

The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he must be placed aside as to the trial of that cause and another must be called.

S.C. Code Ann. § 14-7-1020 (Supp. 1998) (emphasis added).

We recently discussed the issue of whether customers of an electric cooperative must be removed for cause. Wall v. Keels, 331 S.C. 310, 501 S.E.2d 754 (Ct. App. 1998). Because the question was a novel one in South Carolina, we reviewed how other states have ruled on this issue. Some states hold that customers of cooperatives, by virtue of their participation in the cooperative's revenues, are per se incompetent to serve as jurors in cases involving the cooperatives. (1)

Essentially, cooperative customers are excluded because of implied bias. Other states, however, reject a per se rule of exclusion. Rather, these states require a party to establish a juror's actual bias through questioning. (2)

In Wall we declined to decide whether a cooperative customer was per se disqualified from serving on a jury when the cooperative association was a party. The appellant in Wall did not seek a per se disqualification of the customers of the cooperative. Instead, he sought proposed voir dire to determine whether potential jurors, because of their membership in the cooperative association, were actually biased against him. Under the circumstances of the case, (3) we held the trial court abused its discretion by rejecting the proposed voir dire. However, we limited our holding:

We do not mean to suggest that . . . the trial court must ask all voir dire submitted by the parties or must strike for cause all members of the cooperative if so requested by one of the parties. The resolution of the case before us does not require the adoption of any bright-line rule, and our opinion should not be read as adopting any such rule.

Wall, 331 S.C. at 322, 501 S.E.2d at 760.

We, therefore, left for another day the decision of whether to adopt a per se rule excluding members of cooperative associations from the venire. The day for that decision has now come.

The South Carolina Supreme Court has held "[t]hat a stockholder in a company which is a party to a lawsuit is incompetent to sit as a juror." Southern Bell Tel. & Tel. Co. v. Shepard, 262 S.C. 217, 222, 204 S.E.2d 11, 12 (1974) (quoting Chestnut v. Ford Motor Co., 445 F.2d 967, 971 (4th Cir. 1971)). Alston asserts customers of an electric cooperative should similarly be automatically disqualified for cause.

In contrast to a stockholder, other jurisdictions have recognized that public utility customers, which are more analogous to cooperative customers than investment-minded shareholders, are not presumptively biased in favor of the utility. See In Re Virginia Elec. & Power Co., 539 F.2d. 357 (4th Cir. 1976) (holding trial judge was not required to recuse himself from case where electric utility that served him claimed $152,000,000 in damages, the recovery of which would result in a potential refund to the judge of $70 to $100); City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F. Supp. 1240 (N.D. Ohio 1980) (denying motion to exclude from jury venire all electric power customers of either the City or the Cleveland Electric Illuminating Co., but intending to conduct comprehensive voir dire examination to determine whether the veniremen have, or believe they have, an interest in the outcome of the controversy); Pennsylvania Power & Light Co. v. Gulf Oil Corp., 411 A.2d 1203, 1218 (Pa. 1980) (holding that whether utility "customers believe that they will benefit . . . can be satisfactorily discovered on voir dire").

As Alston notes, Black River customers enjoy similar rights to and benefits of corporate stockholders. Black River members attend annual and special meetings and elect members of the Board of Trustees. They have the power to alter, amend, or repeal their bylaws. Excess revenues are credited to a patron's capital account. If Black River dissolved, its assets, after the payment of all debts, obligations, and liabilities, would be distributed to its members.

However, unlike corporate shareholders, the members of Black River are first and foremost customers of a utility. Their main concern is utility service, not profit. Moreover, utility customers have little choice in their provider.

The Mississippi Supreme Court has refused to per se disqualify members of cooperatives, explaining:

In a largely rural area such as exists in Mississippi, all people outside municipalities are supplied by electric co-operatives. Any pecuniary gain the customer or member receives is practically nil. . . . Mississippi jurisprudence is not ready to adopt or establish [a per se rule of disqualification for co-operative members]. We have adequate law and authority which will provide for the obtaining of a fair trial and an impartial jury without such a per se disqualification for cause.

Williams v. Dixie Elec. Power Assoc., 514 So. 2d 332, 338 (Miss. 1987) (quoting Garcia v. Coast Elec. Power Assoc., 493 So. 2d 380, 383-84 (Miss. 1986)).

South Carolina is geographically similar to Mississippi. As we recognized in Wall v. Keels, it is possible that many, if not most, prospective jurors in a predominantly rural county would be customers of a cooperative. Adoption of a rule of per se exclusion might render a trial in the county served by the cooperative impossible.

Therefore, before a cooperative customer is excused for cause, the party attempting to disqualify the potential juror must demonstrate actual bias. Furthermore, the trial judge shall have the discretion to decide whether the cooperative customer "is not indifferent in the cause." S.C. Code Ann. § 14-7-1020 (Supp. 1998).

This determination should be made on a case-by-case basis. In some circumstances, the trial judge may determine the mere implication of bias is enough to disqualify the cooperative customer. On the other hand, the potential benefit a customer could derive from a case may be so slight or attenuated that a presumption of bias is unnecessary.

As we said in Wall v. Keels, we caution trial judges to be aware of the potential for bias in cases involving cooperatives. We, therefore, urge judges to allow sufficient voir dire to give parties enough information about prospective jurors to determine whether cooperative customers could serve as fair and impartial jurors. Although this list is not exclusive, judges should keep these considerations in mind in developing voir dire, and in determining whether to strike customers of cooperative associations for cause: (1) the amount in controversy; (2) the prospective jurors' benefit or detriment; (3) the prospective jurors' perceived benefit or detriment; (4) and (4) the prospective jurors' involvement with the cooperative association.

In this case, Alston did not request extensive voir dire. Rather, he asked for exclusion of all members of Black River. The trial court did not err in refusing to excuse cooperative members for cause.

AFFIRMED.

CONNOR and STILWELL, JJ., concur and ANDERSON, J. dissents in separate opinion.

1. See Lowman v. Georgia, 398 S.E.2d 832 (Ga. Ct. App. 1990) (members of electric cooperative are disqualified from sitting as jurors in criminal prosecution for damage to property owned by the cooperative); Thompson v. Sawnee Elec. Membership Corp., 278 S.E.2d 143, 145 (Ga. Ct. App. 1981) ("It is clear that the members of an electric membership corporation are in the same position as the stockholders of a corporation . . . as regards their right to share in the net earnings of the business. Accordingly, we conclude that the members of an electric membership corporation are disqualified from service as jurors in the trial of a case in which damages are sought from the corporation." (citation omitted)); Ozark Border Elec. Coop. v. Stacy, 348 S.W.2d 586, 591 (Mo. Ct. App. 1961) ("[A] member of a rural electric co-operative . . . whose status is akin to that of a stockholder and whose interest, financial and otherwise, is no more remote or minute and certainly no less active or live than that of many stockholders, is disqualified to sit as a juror in a suit to which the co-operative is a party."); South Dakota v. Thomlinson, 100 N.W.2d 121 (S.D. 1960) (holding a member of cooperative association had a disqualifying interest and should not have been allowed to sit on jury in prosecution for burglary of association's property); Salt River Valley Water Users' Assoc. v. Berry, 250 P. 356 (Ariz. 1926) (treating members of association as ordinary corporate stockholders and disqualifying them from service on jury in case involving association); Peanut Growers' Exch. v. Bobbitt, 124 S.E. 625, 625 (N.C. 1924) (holding trial court erred in refusing to strike for cause a juror who was a member of the plaintiff association, notwithstanding juror's assertion that he could be fair and impartial, because "juror was a member of the plaintiff association and necessarily interested in the litigation").

2. See Larson v. Williams Elec. Coop., 534 N.W.2d 1, 4 (N.D. 1995) ("Instead of a blanket disqualification of an entire group of potential jurors based on the mere existence of a relationship, [the North Dakota statute on challenges for cause] requires an analysis of the extent of any individual interest in the outcome of the lawsuit that may exist because of the relationship."); Cassady v. Souris River Tel. Coop., 520 N.W.2d 803, 806 (N.D. 1994) ("[M]ere membership in a cooperative does not signify an interest sufficient to automatically disqualify a person from serving as a juror in a case involving the cooperative. To disqualify a prospective juror, a challenger must establish an actual bias, rather than a presumed bias, on the part of the prospective juror."); Garcia v. Coast Elec. Power Assoc., 493 So. 2d 380, 384 (Miss. 1986) (holding that existing law and authority will adequately "provide for the obtaining of a fair and impartial jury without such a per se disqualification for cause"), overruled in part on other grounds by Whittley v. City of Meridian, 530 So. 2d 1341 (Miss. 1988) and Robles v. Gollott & Sons Transfer & Storage, Inc., 697 So. 2d 383 (Miss. 1997).

3. The cooperative association made an improper closing argument by unfairly appealing to the economic self-interest of the cooperative members sitting on the jury.

4. See generally City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F. Supp. 1240 (N.D. Ohio 1980).