SCOTT A. ROBERTS v. CSX TRANSPORTATION, INC.
Record No. 090194
Supreme Court of Virginia
January 15, 2010
Present: All the Justices
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge
This appeal arises out of an action brought under the
I. MATERIAL FACTS AND PROCEEDINGS
Although Roberts prevailed at trial, he appeals from the circuit court‘s judgment, presenting two assignments of error both of which deal exclusively with objections raised during voir dire of the venire. The details of the evidence adduced at trial are not pertinent to the dispositive issue before us; therefore, we will recite only those facts relevant to that issue.
During the cirсuit court‘s voir dire of the venire regarding matters that might reveal a prospective juror‘s prejudice or bias, a potential juror, identified as Donald Kemp, stated that he had been a shareholder of CSX for “[p]robably 30 years.” The court asked Kemp whether “being a stockholder with the corporation [would] have a bearing on [his] ability to be fair and impartial” and whether he “actively participate[d] in annual meetings.” As to both questions, Kemp responded, “No.”
Roberts moved that Kemp “be stricken for cause” because of his status as a long-time shareholder of CSX. CSX, however, urged the circuit court not to strike Kemp for cause, arguing that “he answered . . . fairly quiсk[ly] and fairly candidly” that he could be fair and impartial. The circuit court overruled Roberts’ motion, finding that Kemp “did answer very adamantly that he had no problems with being able to listen to facts and make a fair and impartial decision.” Roberts later used one of his peremptory strikes to remove Kemp from the jury panel.
After trial, Roberts moved for a new trial on the ground, inter alia, that “the trial court‘s failure to strike juror Donald Kemp for cause . . . is per se reversible error.” The circuit court denied the motion and entered judgment in accordance with the jury verdict. This appeal ensued. In the dispositive assignment of error, Roberts claims that the circuit court “erred by failing to strike prospective juror, Donald Kemp, for cause as a 30-year stockholder in defendant CSX.”
II. ANALYSIS
On appellate review, this Court gives deference to a trial court‘s decision whether to exclude a potential juror for cause. Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 (2001). We defer “[b]ecause the trial judge has the oppоrtunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand,” Juniper v. Commonwealth, 271 Va. 362, 400, 626 S.E.2d 383, 408 (2006) (citation omitted), and “‘to determine whether a prospective juror‘s responses during voir dire indicate that the juror would be prevented from or impaired in perfоrming the duties of a juror,‘” Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71, 73 (2005) (citation omitted). Thus, “a trial court‘s denial of a motion to strike a juror for cause ‘will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.‘” Id. at 329-30, 619 S.E.2d at 73 (quoting Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001)); accord Cantrell v. Crews, 259 Va. 47, 50, 523 S.E.2d 502, 504 (2000).
“Parties to litigation are entitled to a fair and impartiаl trial by a jury of persons who ‘stand indifferent in the cause.’ ‘The right to a fair and impartial trial in a civil case is as fundamental as it is in a criminal case.‘” Cantrell, 259 Va. at 50, 523 S.E.2d at 503 (quoting Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262, 268 (1940)) (internal citation omitted). To safeguard jury impartiality, the General Assembly has provided that “if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case.”
A trial court must excuse for cause a potential juror who “‘has any interest in the cause, or is related to either party, or has expressed or formed any opinion, or is sensible of any bias or prejudice’ regarding the action.” Spangler v. Ashwell, 116 Va. 992, 996-97, 83 S.E. 930, 931 (1914) (citation omitted). Although this Court generally disfavors per se rules of juror disqualification “by reason of [the juror‘s] status alone,” we have nevertheless establishеd “limited categories” of per se disqualification. Townsend, 270 Va. at 331, 619 S.E.2d at 74 (citing examples of per se disqualification). One such category establishes “[t]hat a stockholder in a company which is party to a lawsuit is incompetent to sit as a juror” because such a person “could [not] be said to stand indifferent in the cause.” Salina, 217 Va. at 93-94, 225 S.E.2d at 200-201; see Breeden v. Commonweаlth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976) (explaining Salina); accord Gladhill v. General Motors Corp., 743 F.2d 1049, 1050 (4th Cir. 1984) (“‘That a stockholder in a company which is party to a lawsuit is incompetent to sit as a juror is so well settled as to be black letter law.‘“) (quoting Chestnut v. Ford Motor Co., 445 F.2d 967, 971 (4th Cir. 1971)); Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122 (10th Cir. 1995) (a trial court must presume bias when a prospective juror is a stockholder in a corporation that is a party to the action). And, it is immaterial whether a juror, who directly owns stock in a company that is a party to the lawsuit, is called to sit in a civil or criminal case; the per se disqualification remains.
In the criminal context, it is well-settled that a trial court commits “prejudicial error” if it “force[s] a defendant to use peremptory strikеs to exclude a venire[person] from the jury panel if that person is not free from exception.” Townsend, 270 Va. at 329, 619 S.E.2d at 73; accord Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90 (1980); Breeden, 217 Va. at 300, 227 S.E.2d at 737; Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727, 737 (1852). We explained in Breeden that a defendant‘s use of a peremptory strike to remove a juror who was not free from exception was not harmless error because a defendant “has a right to an impartial jury drawn from ‘a panеl [of twenty] free from exceptions.‘” 217 Va. at 300, 227 S.E.2d at 736-37 (quoting former
Prospective juror Kemp directly owned stock in defendant CSX, thus rendering him not “indifferent in the cause” as a matter of law. See Salina, 217 Va. at 94, 225 S.E.2d at 201. That he sincerely maintained he could faithfully and impartially perform his duties as a juror is without import.
A venireperson who сannot stand indifferent in the cause must be stricken despite any insistence as to impartiality, for “however willing [the juror might] be to trust himself, the law will not trust him.” Armistead v. Commonwealth, 38 Va. (11 Leigh) 688, 695 (1841) (citing Osiander v. Commonwealth, 30 Va. (3 Leigh) 780 (1831)); accord Barrett, 262 Va. at 825-27, 553 S.E.2d at 732-33; Justus, 220 Va. at 977-78, 266 S.E.2d at 91-92; Dejarnette v. Commonwealth, 75 Va. 867, 872-73 (1881); see also Gladhill, 743 F.2d at 1050 (If a “juror is legally disqualified from acting, the juror‘s analysis of his subjective qualifications is beside the point.“). Thus, the circuit court‘s refusal to strike Kemp for cause was “manifest error аmounting to an abuse of discretion.” Townsend, 270 Va. at 330, 619 S.E.2d at 73. Roberts’ use of a peremptory strike to remove Kemp from the jury panel did not render that error harmless because Roberts was entitled, as a matter of law, to have a panel free from exception upon which to exercise his peremptory strikes.1 See
Our analysis does not end herе. CSX contends that resolution of the issue before us is not governed by the Virginia rule that it is prejudicial error for a trial court to force a party to use a peremptory strike to remove a venireperson from the jury panel who is not free from exception. Instead, CSX insists that federal law governs because applicаtion of the Virginia rule would be “outcome determinative“: “if federal law is applied, CSX[] is not at hazard of another trial whereas if [the Virginia rule] is applied, CSX[] must submit to another trial.”
CSX correctly notes that under federal law, the use of a peremptory strike to remove a juror who should have been excluded for cause, thereby effectively reducing the number of peremptory challenges afforded to a party, does not violate the constitutional right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). Peremptory challenges are only “a means to achieve the end of an impartial jury“; “[s]o long as the jury that sits is impartial, that the defendant had to use a peremptory challеnge to achieve that
The Supreme Court of the United States has also held that “mistaken denial of a state-provided peremptory challenge” does not require automatic reversal as a matter of federal law but is a matter for the State to determine under its laws. Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 1455-56 (2009). The Supreme Court recognized:
States are free to decide, as a matter of state law, that a trial court‘s mistaken denial оf a peremptory challenge is reversible error per se. Or they may conclude . . . that the improper seating of a competent and unbiased juror[, though] error[,] could rank as harmless under state law.
Id. at 1456. Thus, whether a second trial of Roberts’ FELA claim is required depends on whether state or federal law governs resolution of the issue before us.
FELA actions brought in state court are “subject to state procedural rules, but the substantive law governing them is federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985); see Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 46-47 (1931) (“[I]n proceedings under [FELA], wherever brought, the rights and obligations of the parties depend upon . . . applicable principles of common law as interpreted and applied in the federal courts.“) (emphasis added); Norfolk S. Ry. v. Rogers, 270 Va. 468, 479-80, 621 S.E.2d 59, 65-66 (2005) (“In FELA сases, Virginia law governs the admissibility of expert testimony” but “[t]he question whether an employer was negligent . . . is a question of federal law.“). “State laws are not controlling in determining what the incidents of this federal right [under FELA] shall be.” Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 361 (1952).
While distinguishing “substance” from “procedure” is often difficult, see Brown v. Western Ry. of Ala., 338 U.S. 294, 296 (1949), issues found to be substantive, i.e., to affect the “rights and obligations” of the parties, and thus governed by federal law, include those involving whether a complaint was legally sufficient to state a cause of action under FELA, id. at 296; whether a plaintiff is entitled to a jury trial on a question of fact under FELA, Dice, 342 U.S. at 363; which defenses apply to a FELA claim, Kuhn, 284 U.S. at 46-47; whether a jury instruction “concerning the measure of damages in an FELA action” must be given, Dickerson, 470 U.S. at 411; whether a jury may be presented with evidence of remuneration from third-parties, Eichel v. New York Cent. R.R. Co., 375 U.S. 253, 254-56 (1963); whether an award of prejudgment interest may be granted, Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 335-36 (1988); and whether there was sufficient evidence to submit a case to a jury and to support its verdict, Lavender v. Kurn, 327 U.S. 645, 652-53 (1946). As the Supreme Court noted in Dice, federal law is controlling when “employees[‘] right to recover just compensation for injuries negligently inflicted by their employer” would “be defeated if states were permitted” to apply their rules, or those rules are “wholly incongruous” with that purpose and would undermine the “uniform application [of FELA] essential to effectuate its purposes“; or when the state‘s rule does not apply uniformly to all similar claims brought in state court. Dice, 342 U.S. at 361-63.
In Johnson v. Fankell, 520 U.S. 911 (1997), an analogous case to the present one although it involved a
Assuming without deciding that the outcome determinative test is appropriate to use in the case before us, application of the Virginia rule is not outcome determinative. Reversing the circuit court‘s judgment and remanding for a new trial will not control “the ultimate disposition” of Roberts’ FELA claim against CSX, id. at 921, affect the measure of damages he may recover, determine what defenses apply, burden his efforts to obtain a remedy for his injury, or frustrate Congress’ “remedial” and “humane” purposes in enacting FELA, Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 427-28 (1965). Contrary to CSX‘s suggestion, whether CSX is “at hazard” for another trial is not the appropriate inquiry. Nor will applying the Virginia rule affect the “rights and obligations of the parties” under the procedural/substantive rubric. Kuhn, 284 U.S. at 46. Instead, it will extend to a litigant presenting a FELA claim in a Virginia court the statutory rights the General Assembly has afforded to all parties in jury trials, whether civil or criminal, i.e., a jury panel free from exception to which a party may then direct its full complement of peremptory strikes. We therefore hold that the Virginia rule governs the disposition of Roberts’ claim that the circuit court “erred by failing to strike prospective juror, Donald Kemp, for cause.” See Southern Ry. Co. v. Minor, 395 S.E.2d 845, 847 (Ga. Ct. App. 1990) (evaluating under state law whether a trial court erred in striking a juror for cause in a FELA action); Auer v. Burlington N. R.R. Co., 428 N.W.2d 152, 159-61 (Neb. 1988) (same); Houghton v. Port Terminal R.R. Ass‘n, 999 S.W.2d 39, 45-47 (Tex. Ct. App. 1999) (same).
III. CONCLUSION
For these reasons, we will reverse the circuit court‘s judgment and remand the case
Reversed and remanded.
CYNTHIA D. KINSER
JUSTICE, SUPREME COURT OF VIRGINIA