Finch v. Mississippi State Medical Ass'n, Inc.

• Decision Date: 07 December 1978
• Docket Number: No. 78-2138,78-2138
• Citation: 585 F.2d 765
• Parties: The Honorable Cliff FINCH, Governor of the State of Mississippi, et al., Plaintiffs-Appellants, v. MISSISSIPPI STATE MEDICAL ASSOCIATION, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 765

585 F.2d 765

The Honorable Cliff FINCH, Governor of the State of Mississippi, et al., Plaintiffs-Appellants, v. MISSISSIPPI STATE MEDICAL ASSOCIATION, INC., et al Defendants-Appellees.

No. 78-2138.

United States Court of Appeals Fifth Circuit.

Dec. 7, 1978.

George Colbin Cochran, Alvin M. Binder, Jackson, Miss., for plaintiffs-appellants.

William N. Reed, Walker W. Jones, III, L. Arnold Pyle, Jackson, Miss., for Miss. State Pharmaceutical Ass'n.

Nap L. Cassibry, II, Gulfport, Miss., Peyton S. Irby, Jr., Jackson, Miss., for Miss. Optometric Ass'n.

James K. Child, Jr., J. Leray McNamara, Jackson, Miss., for Miss. State Medical Ass'n.

John L. Maxey, II, Robert W. Sneed, Jackson, Miss., for Miss. Nurses Ass'n.

Timmie Hancock, Asst. Atty. Gen., A. F. Summer, Atty. Gen., Edwin A. Snyder, R. Lloyd Arnold, Sp. Asst. Atty. Gen., Jackson, Miss., for Miss. State Bd. of Dental Examiners.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The Mississippi State Board of Health is a state agency composed of thirteen members. Twelve are appointed by the Governor; the thirteenth, the executive officer, is elected by the appointed members. Section 41-3-1 of the Mississippi Code ¹ provides that eight are to be qualified physicians who are members of the State Medical Association and nominees of that Association; four others are to be similarly appointed from nominees, respectively, of the Mississippi State Board of Dental Examiners, the Mississippi Optometric Association, the Mississippi Pharmaceutical Association and the Mississippi Nurses' Association. The Governor of Mississippi, two black doctors, seeking to represent a class composed of black physicians, and four other individual plaintiffs launched a multi-pronged attack on Mississippi's statutory method of selecting members of the State Board of Health, contending primarily that the process discriminates against blacks in violation of 42 U.S.C. §§ 1981 and 1983 and the Fourteenth Amendment to the Constitution, but attacking it also on a number of other fronts. Although the plaintiffs allege, generally, the unconstitutionality of various sections of the Mississippi Code, ² it is apparent that their attack focuses on the alleged unconstitutionality of section 41-3-1 on its face and as applied.

The trial judge treated a motion to dismiss the action as a motion for summary judgment because each party had presented evidentiary material by way of affidavit and each, he said, had been given full opportunity to respond to the matters presented by opposing parties; he then decided that the plaintiffs had failed to show the existence of a case or controversy between persons with proper standing and defendants against whom a cause of action had been stated. Moreover, he concluded that the court should abstain from deciding the case because the same issues were or could be raised in a pending state proceeding.

The issues raised are too complex and intertwined to permit a facile resume. After analyzing each of the questions involved, however, we conclude that those black physicians who seek to represent a class of black doctors have stated a claim for which relief can be granted, that this class does have standing to sue against one defendant, and that their claim was, therefore, improperly dismissed. However, this putative class action properly lies against only one defendant, the Mississippi State Medical Association, Inc., and, because it is possible that under Mississippi state law that association may not be given nominating authority or the statute may be invalid for some other reason, the federal class action claims against it should abide for a reasonable period of time until the state law issues can be resolved. In addition, we find that Dr. Mason has standing to assert a claim against the association and that he seeks relief that might properly be allowed. The action was properly dismissed as to the claims of the other plaintiffs and as to all claims against the other defendants. Having encapsulated the conclusions, we turn to a detailed analysis of the facts and the applicable legal authorities.

I. BACKGROUND

Because of the variety both of plaintiffs and of the claims they present, we first list the dramatis personae. One of the plaintiffs, Cliff Finch, is the Governor of Mississippi; two, Drs. Gilbert R. Mason and Albert B. Britton, Jr., ³ are black physicians; three, Drs. Howard D. Clark, William A. Middleton and George W. Howell are white physicians. Juanita W. Ginn is a black female citizen of Mississippi. There is no plaintiff who is a dentist, optometrist, pharmacist, or nurse, and none who purports to represent a class including members of any of these professions.

The plaintiffs allege that no black physician has ever been nominated for appointment to the Board of Health by the Mississippi State Medical Association, and that the Governor has appointed Dr. Mason, one of the black-physician-plaintiffs, to the Board of Health, together with Drs. Clark and Middleton, two white-physician-plaintiffs, but the Senate has refused to confirm these appointments because the nominations were not submitted by the Mississippi State Medical Association although all were suggested by the Mississippi Medical and Surgical Association, a society composed predominantly of black doctors.

Ms. Ginn appears as representative of two classes: poor, needy and indigent citizens of Mississippi, and all female citizens who are consumers of health services. She seeks to protect the interests of those classes and asserts that both females and poor people are systematically excluded from consideration for appointment to the Board of Health.

Dr. Howell asserts that the class of plaintiffs of which he is a member is systematically excluded from membership on the Board; although the complaint does not define this class, we infer that it consists of physicians who are not members of the State Medical Association.

Governor Finch asserts that the impugned Mississippi statute contravenes the federal and state constitutions, ⁴ and that, if he enforces the Mississippi statute, he will violate both of them as well as the oath he has sworn to uphold them. In addition, if he enforces the statute, he may be sued by members of the black race.

The complaint seeks a declaratory judgment that the Mississippi statute violates the First Amendment by improperly limiting the right of all of the plaintiffs to free speech and association; that it unlawfully delegates legislative power and fails to set forth adequate standards, thus violating both the state and federal constitutions; that it creates an arbitrary classification, violating equal protection rights; that the statute is ambiguous because it refers to "the State Medical Association" without indicating whether the term means the Mississippi State Medical Association, which did not admit any black doctors until 1966, or the later formed Mississippi Medical and Surgical Association, most of whose members are black. It exhorts expedited hearing and speedy disposition.

The facts concerning whether there has been discrimination based on race, sex, or indigency are apparently disputed. With respect to any issues that turn on these questions, summary judgment was inappropriate. Rules 12(c) and 56, Federal Rules of Civil Procedure. The material facts necessary to the resolution of the other issues now presented in the case, however, are not genuinely disputed. We shall refer to them as we analyze the issues. The questions raised by the defendants are each dealt with separately in our discussion.

II. STANDING

The Constitution of the United States limits the judicial power of federal courts to cases and controversies. Art. III, § 2, cl. 1. It is implicit in this limitation that federal courts may undertake to decide only those disputes capable of and suitable for judicial resolution. "The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617, 621. Such a dispute arises only when it is asserted by a person who has a direct interest in its determination. S. v. D., 1973, 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536. This quality is summed up in the word "standing."

As an aspect of justiciability, standing is, and can only be, demonstrated by a plaintiff who has a personal interest in the outcome of the controversy, not merely an interest as a citizen, however earnest, in obtaining a decision on a question of concern. Schlesinger v. Reservists Committee to Stop the War, 1974, 418 U.S. 208, 220, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706, 718; Ex parte Levitt, 1937, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493. Thus, the "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678. See also Regents of University of California v. Bakke, 1978, --- U.S. ----, ---- n. 14, 98 S.Ct. 2733, 2743, 57 L.Ed.2d 750, 765. In essence, a litigant lacks standing to sue in federal court if he does not demonstrate that the actions complained of cause him injury in fact different from that suffered by citizens at large. Compare Association of Data Processing Service Organizations, Inc. v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184. Under our constitution questions of injury to the general public are not to be resolved by the judiciary. See Schlesinger, supra, 418 U.S. at 222, 94 S.Ct. at 2933, 41 L.Ed.2d at 719.

MS. GINN'S CLASS ACTIONS

Insofar as Ms....