Hawkins v. North Carolina Dental Society

• Decision Date: 19 June 1964
• Docket Number: Civ. A. No. 1505.
• Citation: 230 F. Supp. 805
• Parties: Reginald A. HAWKINS, on behalf of himself and others similarly situated, Plaintiff, v. NORTH CAROLINA DENTAL SOCIETY, an unincorporated association, and its officers, W. B. Sherrod, President, L. Franklin Bumgardner, Vice-President, Luther Butler, President-elect, and S. B. Towler, Secretary-Treasurer, Second District Dental Society, Component of the North Carolina Dental Society, an unincorporated association and its officers, William F. Yelton, President, James A. Harrell, President-elect, Fleming H. Stone, Vice-President, O. J. Freund, Editor, and James E. Graham, Secretary-Treasurer, Defendants.
• Court: U.S. District Court — Western District of North Carolina

230 F. Supp. 805

Reginald A. HAWKINS, on behalf of himself and others similarly situated, Plaintiff, v. NORTH CAROLINA DENTAL SOCIETY, an unincorporated association, and its officers, W. B. Sherrod, President, L. Franklin Bumgardner, Vice-President, Luther Butler, President-elect, and S. B. Towler, Secretary-Treasurer Second District Dental Society, Component of the North Carolina Dental Society, an unincorporated association and its officers, William F. Yelton, President, James A. Harrell, President-elect, Fleming H. Stone, Vice-President, O. J. Freund, Editor, and James E. Graham, Secretary-Treasurer, Defendants.

Civ. A. No. 1505.

United States District Court W. D. North Carolina, Charlotte Division.

June 19, 1964.

T. H. Wyche, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Frank H. Heffron, Jack Greenberg and Jack Nabritt, III, New York City, for plaintiff.

Joyner & Howison, Raleigh, N. C., for defendants.

WARLICK, District Judge.

In this action, plaintiff, a Negro citizen, suing on behalf of himself and other Negro dentists similarly situated, seeks injunctive relief alleging that the defendants have discriminated against him because of his race in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution. The relief sought in plaintiff's prayer is an injunction forever restraining defendants from excluding plaintiff and all others similarly situated from full and equal participation in defendant societies' membership because of race. In Section III of his complaint, however, plaintiff states that his is an action to restrain the defendant societies and their officers from refusing to admit him to membership.

This cause came on to be heard and was heard by the undersigned Judge of the United States District Court for the Western District of North Carolina at Charlotte.

Prior to the trial and upon motion of counsel for defendants and over the objection of counsel for plaintiff a jury was drawn and at the hearing was selected by counsel for all parties and empaneled by the Court, in order that it might be available and ready if, in the discretion of the Court, it was desired to submit to the jury any issue of fact for an advisory verdict.

Following the presentation of evidence by plaintiff, the defendants offering no evidence, and after motions under Rule 41(b) had been made, the Court determined, without objection, that the matters involved were matters of equity and were of a non-jury nature and that the Court need not request any advisory verdict from the jury pursuant to Rule 39 (c), Federal Rules. The Court then discharged the jury, by consent, and announced that the Court would await the transcript of the evidence and would make a decision after receipt and study of the transcripts and briefs, requesting counsel to submit proposed findings of fact and conclusions of law in the time allowed.

The record, including pleadings, evidence and exhibits, has been carefully considered and a full study of the proposed findings and conclusions has been made. All of the evidence in the case was directed to two questions or issues. These are in substance:

1. Is the State of North Carolina in any of its manifestations so involved in the conduct of the North Carolina Dental Society or of the Second District Dental Society that the activities of these societies are also the activities of the State of North Carolina and performed under its protection, and whether or not either society is the instrumentality or the agent of the State in a strict sense? In other words, to any significant extent, is the State of North Carolina in any of its manifestations involved in the action of either of these two societies so that their actions are "State actions" within the meaning of the Fourteenth and Fifteenth Amendments to the United States Constitution?

2. If so, has the North Carolina Dental Society or the Second District Dental Society discriminated against the plaintiff or other duly licensed Negro dentists because of race or color?

Pursuant to Rule 52 of the Federal Rules of Civil Procedure the following Findings of Fact and Conclusions of Law are made?

FINDINGS OF FACT

Plaintiff, Reginald A. Hawkins, a Negro, is a dentist duly licensed to practice dentistry in the State of North Carolina and is engaged in such practice in the City of Charlotte, North Carolina.

Considering first the issue of "State Action" I find that:

The North Carolina Dental Society is a voluntary association of dentists of which the Second District Dental Society is a constituent part. Membership in the Second District Dental Society automatically constitutes membership in the North Carolina Dental Society. Society members are those who voluntarily seek to join and whom the Society accepts for membership in accordance with its charter and by-laws. For convenience hereafter the North Carolina Dental Society will be referred to as "The Society" and the Second District Dental Society as "The District".

The objects and purposes of the Societies are stated in their constitution as:

"The object of this Society shall be to cultivate the art and science of dentistry and its collateral branches; to elevate and sustain the professional character of dentists; and to promote among them mutual improvements and harmonious relations."

The actions and activities of the Society and the District are consistent with these stated objects and purposes.

At the time this cause was heard there were 1,529 licensed dentists in North Carolina. The membership of the Society at that time was 1,214. The evidence fails to disclose how many of these 1,214 members of the Society are licensed dentists and the constitution of the Society only requires that active members as distinguished from Life, Honorary and Retired members be currently licensed dentists. For its purposes, however, I have assumed that substantially all of these Society members are currently licensed dentists.

Under the existing North Carolina laws any dentist, licensed in North Carolina for at least nine years, engaged in the practice of dentistry is eligible for election to membership on the North Carolina State Board of Dental Examiners, an agency of the State of North Carolina, and each licensed dentist is authorized to participate fully with every other licensed dentist in the nomination and election of the members of the North Carolina State Board of Dental Examiners. The North Carolina statute does not grant or give to the North Carolina Dental Society or to the Second District Dental Society any authority whatever with respect to the nomination of election or the conduct of any members of the State Board of Dental Examiners.

No evidence was offered that the North Carolina Dental Society or the Second District Dental Society is exercising or attempting to exercise or threatens to exercise any control or authority over the nomination, election or conduct of any member of the North Carolina Board of Dental Examiners. The plaintiff and any other dentist who is not a member of the Society, whether he be Negro or white, has the same right as do members of the Society to serve on the Board of Dental Examiners and to participate in the nomination and election of its members. It is found as a fact that the defendants are not clothed with and do not exercise any State power over the nomination, election, or conduct of the members of the North Carolina Board of Dental Examiners.

Under the present North Carolina laws the dental member of the North Carolina Medical Care Commission and the dental member of the North Carolina Mental Health Council are appointed by the Governor of North Carolina in his discretion from the field of all licensed dentists in North Carolina. Neither membership in the North Carolina Dental Society nor in any constituent district society is necessary for the making of such appointment. While the law requires the Governor to request recommendations from the President of the Society, the President has no duty to make such recommendations nor need the Governor appoint any dentist so recommended. The Governor may request recommendations from any source and any one, including plaintiff, may make recommendations to him. It is found as a fact that the North Carolina Dental Society and the Second District Dental Society do not exercise any State power or function in connection with the appointment or the conduct of any member of the North Carolina Medical Care Commission, a State agency, or of the North Carolina Mental Health Council.

The Society has a committee known as the "Hospital Service Committee" which as a voluntary service to the American Dental Association from time to time at the request of that association inspects hospitals to determine whether or not, in the opinion of the Committee, the hospital facilities are suitable for the teaching and training of dentists. The Committee makes recommendations of approval or disapproval accordingly to the American Dental Association. No evidence was offered that the American Dental Association has any control over or legal right to exert control over the use of the facilities of any hospital, public or private, for the teaching or training of dentists.

The Society has a committee known as the "Advisory Council to the University of North Carolina School of Dentistry" the function of which committee is to raise funds to create a scientific foundation for research and study in dentistry at or connected with that dental school. The Society does not have any control over the foundation. Here again no evidence was offered that the Society or its Committee is required to engage in this fund raising project or that the foundation or the University of North Carolina is required to accept any funds raised if, for any reason, they should not desire to do so.

The North Carolina Industrial Commission and the North Carolina School Health Coordinating Service are instrumentalities of the State of North...