Hawkins v. North Carolina Dental Society Brief for Appellees

    BRIEF FOR APPELLEES

IN  T H E  U N ITED  STATES COURT OF APPEALS 

F or t h e  F ourth  Circuit

No. 9612

REGINALD A. HAWKINS 
Appellant

vs.

N O RTH  CAROLINA DENTAL SOCIETY, et al.
Appellees

O n  A ppea l  from t h e  U nited  States D istrict Court 
F or tile W estern  D istrict of N orth Carolina

W illiam  T. J oyner 
R. C. FIowison, J r. 
Attorneys for Defendants 
308 Odd Fellows Building 
Post Office Box 109 
Raleigh, North Carolina

Of Counsel:
Joyner & Howison 
308 Odd Fellows Building 
Post Office Box 109 
Raleigh, North Carolina

COMMERCIAL PRINTING COMPANY, RALEIGH, N. C.



I N D E X

PAGE

Statement of the C ase --------------------------------------  1

Questions Involved------------------------ --- --------------  3

Statement of F a c ts ---------------------------------------------  4

Argument

I. There is at Stake Here One of the Most 
Fundamental Attributes of Freedom, namely 
the Freedom to Choose One’s Personal As­
sociates ----------------------------------------------------  8

II. On the Facts There was no State Action or the
Exercise of State Power by the Dental Societies 10

III. There is No Evidence of Racial Discrimination
by Either of the Defendant Appellees----------  21

IV. Conclusion------------------------------------------------ 22

TABLE OF CASES

Anderson v. Martin, 375 US 399, 11 L ed 2d 430,
84 S Ct 454 (1 9 6 4 )__________________________  12

Barrows v. Jackson, 346 US 249, 97 L ed 1586, 73 
S Ct 1031 (1953) ___________________________  13

Bell v. Georgia Dental Association, 231 F Supp 299 
(Northern District of Georgia, 1 9 6 4 ) ----------------  12

Blende v. Maricopa County Medical Society, 393 Pac 
2d 926 (Arizona Supreme Court, July 8, 1964) 17



PAGE

Roman v. Birmingham Transit Co., 280 F 2d 531 
(1960, Fifth Circuit) -----------------------------------

Burton v. Wilmington Parking Authority, 365 US 
715, 6 L ed 2d 45, 81 S Ct 856 (1 9 6 1 )------------ 9,

F,aton v. Grubbs, 329 F 2d 710 (1964, Fourth Circuit)

Falcone v. Middlesex County Medical Society, 34 
N J 582, 170 A. 2d 791 (N. J. Supreme Court, 
1961) _____________________________________

James v. Marinship Corp, 25 Cal 2d 721, 155 P 2d 
329 (1945) ________________________________

National Labor Relations Board v. Southern Bell 
Telephone and Telegraph Company, 319 US 50, 
87 L ed 1250, 63 S Ct 905 (1 9 4 3 )____________

Nixon v. Condon, 286 US 73, 76 L  ed 984, 52 S Ct 
484 (1932) _______________________________

Peterson v. Greenville, 373 US 244, 10 L ed 2d 323,
83 S Ct 1119 (1963) ________________________

Robinson v. Florida, 378 US 153, 12 L ed 2d 771,
84 S Ct 1693 (1 9 6 4 )------------------------------------

Shelley v. Kraemer, 334 US 1, 92 L ed 1161, 68 
S Ct 836 (1948) ___________________________

Simpkins v. Moses H. Cone Memorial Hospital, 323 
F 2d 959 (1963, Fourth Circuit) _____________ 9,

Terry v. Adams, 345 US 461, 97 L ed 1152, 73 
S Ct 809 (1953) ___________________________

Wilson & Co. v. NLRB, 156 F 2d 577 (1946, 
Tenth Circuit) --------------------------------------------

16

10

11

16

17

14

14

13

13

13

11

15

15



IN  T H E  U N ITED  STATES COURT OF APPEALS 
F or t h e  F ourth  Cir c u it

No. 9612

REGINALD A. HAWKINS 
Appellant

vs.

NORTH CAROLINA DENTAL SOCIETY, et al. 
Appellees

On A ppea l  from t h e  U nited  States D istrict  Court 
F or t h e  W estern  D istrict of N orth Carolina

BRIEF FOR APPELLEES

STATEM ENT OF T H E  CASE

We think it proper and necessary to make an addition 
to Appellant’s Statement of the case. We request the 
Court’s attention to the last paragraph of the Appellant’s 
Statement of the case on page 2 of his brief. It is correct 
as appellant says, that the trial was begun on September 
9, 1963. In fact, it lasted two days. After hearing 
much evidence from both plaintiff and defendants, the 
Judge entered his judgment, concluding, as Appellant says: 
“That the North Carolina Dental Society and its com­
ponent societies were not required to conform to non- 
discriminatory standards in their membership policies.”



2

However, that statement does not sufficiently describe 
what Judge Warlick did.

He entered a memorandum decision consisting of thir­
teen (13) pages (Appellant’s Appendix 50a-62a), in which 
he stated the questions presented and made detailed findings 
of fact and conclusions of law. The most important 
question is stated by him on page 51a of Appellant’s 
Appendix, as follows:

“ 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, 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 Caro­
lina 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 Four­
teenth and Fifteenth Amendments to the United States 
Constitution?”

Subsequently, in that memorandum decision, Judge War- 
lick made the following finding of fact, among others, 
(Appellant’s Appendix 53a) :

“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 mem­
bers of the North Carolina Board of Dental Exami­
ners.”
On page 55a, Judge Warlick made the following state­

ment as to lack of evidence:

“There is further no evidence in the record that the



3

North Carolina Dental Society or the Second District 
Dental Society is currently exercising or proposes to 
or threatens to exercise any State, Federal or local 
government power or function or privilege.”

On page 56a, among his findings of fact, he stated:
. . that the defendants are not in any way now 

authorized to exercise or exercising or threatening 
to exercise, any State, or Federal function or power.”
Subsequently, he made conclusions of law. One of his 

most significant conclusions of law is stated as follows: 
(Appellant’s Appendix 61a)

“On the facts found in this case neither the State nor 
Federal government is so involved in the conduct of 
either of defendant societies that their activities, or 
the activities of either of them, or the activities of 
these governments and performed under their aegis 
to such extent that either society can be said to be 
engaged in “State action” within the meaning of the 
racial discrimination prohibitions of the Fourteenth 
and Fifteenth Amendments to the Constitution of the 
United States.
“Further on the facts herein neither defendant pres­
ently is exercising any state or federal power, or is 
authorized to exercise any state or federal power.”

QUESTIONS INVOLVED

We submit that appellant’s statement of questions in­
volved include erroneous conclusions which appellant 
reaches. From the questions as stated by him, there 
should be excluded the language which is placed in paren­
theses below:

“ 1. Whether the North Carolina Dental Society and 
its component regional societies are bound by con­



4

stitutional standards of nondiscrimination in member­
ship policies (as a result of their position of domi­
nance over the dental profession in the State of North 
Carolina, their continuing control over the selection 
of state officers and their participation in govern­
mental programs and activities.)

“2. Whether the defendant dental societies have ex­
cluded the plaintiff and other Negro dentists on the 
basis of race, (or have followed procedures which 
are unfair as applied to Negro applicants).”

STATEM ENT OF FACTS

The facts in this case are of the utmost importance. 
On the facts, was there State action or the exercise of State 
power through the Dental Society? If so, was there racial 
discrimination by the Dental Society?

In his Statement, appellant has made a strenuous effort 
by argument, innuendo and loose language to get this 
case within the pattern of some prior decision. In that 
effort he has failed.

The most outstanding feature of this case is that neither 
defendant Society has received or is receiving a dollar 
of State money and neither defendant now possesses or is 
exercising any grant of State power.

The lower court so found the facts. The evidence 
supports such findings.

There is presently in the hands of the defendant Societies 
no State power and no State authority, and no State money.

In stating his facts on page 6 of his brief, the appellant 
says that “The North Carolina Dental Society and its 
component district societies exercise dominant influence 
over the profession of dentistry in North Carolina.” That



5

is a very broad and loose conclusion which is not supported 
by evidence and which is contrary to the facts as found by 
the court.

In the very next sentence, Appellant seeks to support 
that generalization of dominance, saying:

“The State Society participates in the selection of 
members of various agencies of the State of North 
Carolina, and through cooperation with various public 
agencies, exercises control over virtually every aspect 
of governmental administration pertaining to dentis­
try.”

The phrase “exercises control” is completely contrary 
to the facts disclosed by the evidence and contrary to the 
findings of fact by the court. At most, the evidence showed 
that, when requested, members of the defendant Societies 
or committees of the defendant Societies made recommenda­
tions as to certain appointments, institutional policies, and 
fees.

Not one of those recommendations is required by law 
to be given or to be followed. In every instance, the 
plaintiff or any member or group of plaintiff’s race or the 
dental society to which plaintiff belongs could make similar 
recommendations.

Plaintiff makes no complaint that such recommendations 
are discriminatory in nature or have been detrimental to 
plaintiff or to any dentist members of his race. In fact, 
plaintiff has been the beneficiary of Society recommenda­
tions (for example, to participate in Veterans Administra­
tion Programs). Plaintiff does not say that he has sug­
gested any change or now suggests any change in the 
practices or in the fees recommended by either of the 
defendants or individual members or committees of the 
defendants.



6

On this point of recommendations not required to be 
given or to be followed, the court made findings as follows: 
(Appellant’s Appendix 55a-56a)

“It is found as a fact that the acts of the defendants 
now being performed or proposed with respect to the 
State of North Carolina, its agencies or instrumentali­
ties, or the Federal Government, its agencies or 
instrumentalities, or any other governmental agency 
or instrumentality are recommendatory only in their 
nature and effect, are not binding on the public or 
semi-public body to which made, are voluntarily made 
at the voluntary request of the body and are a public 
service of a professional nature; that the defendants 
are not in any way now authorized to exercise or 
exercising or threatening to exercise, any State, or 
Federal function or power.”

Appellant’s statement of fact as to “exercises control” 
is unsupported and unwarranted.

Appellant tries to make much of the membership of the 
State Board of Dental Examiners. After plaintiff had 
complained that the statute required that each member 
of the Board must be a member of the Dental Society 
and that the Society should name all members of the Board, 
the 1961 Legislature of North Carolina changed that law. 
A new statute provided that any properly qualified dentist 
is eligible to become a member of the State Board of 
Dental Examiners and provided a complete and equitable 
method for the nomination and the election of the members 
of the State Board of Dental Examiners. Under that 
statute, every qualified dentist in North Carolina can par­
ticipate in the nomination and in the election of the Board 
of Examiners. The complete statute was attached to one 
of the Society’s pleadings and is found in Appellant’s Ap­
pendix 29a-38a.



7

Appellant says on page 7 of his brief:

“Despite the statutory change, the North Carolina 
Dental Society continues to control the selection of 
members of the State Board of Dental Examiners.”

There is not one shred of evidence which supports that 
reckless statement. Of course the majority of votes cast 
for a nominee results in the election of a candidate. But 
there is not a particle of evidence of Society activity in 
the elections or of any “politicking” or campaigning. Cer­
tainly there has been no so-called “primary” conducted by 
the Society. The only events recorded in the evidence 
are the making of nominations and the holding of elections. 
It appears that in one instance there has been an election 
contest. In two years there were no more nominees than 
there were positions to be filled.

Neither the plaintiff nor any dentist of his race testified 
that he had ever nominated anyone, had ever sought to 
get anyone nominated or had ever even participated in an 
election. Obviously plaintiff failed to make any effort to 
assert or to enjoy the equal privileges of nominating and 
voting given to him by the North Carolina Statute.

Plaintiff failed to meet the burden of proof to support 
his allegation that the Society was operating as a political 
party.

The court made very specific findings on this subject 
also.

(Appellant’s Appendix 53a)
“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 Caro­



8

lina 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 nomi­
nation 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.”
In fact, it is plain that the plaintiff was not interested 

in elections. Elections were the last thing that plaintiff 
desired. On page 10 of his brief, in Appellant’s “Statement 
of Facts”, Appellant makes a point that a delegation from 
defendant Society represented the Society at the 1961 Legis­
lative hearing on the proposed election bill and recom­
mended the passage of the bill. We inquire, did appellant 
mean to infer that such appearance and recommendation 
by the Society were improper? Does appellant mean to 
say that the Society should not have favored elections in 
which all dentists could participate and any dentist could 
be elected?

There can be no stigma to the advocacy of such legisla­
tion.

The appellant’s brief failed to call attention to the 
significant facts that Dr. Hawkins appeared at the Legis­
lative Committee hearing on the 1961 Dental Election 
Bill and that Dr. Hawkins opposed its passage. (Appel­
lant’s Appendix 254a)

ARGUM ENT
I. TH ER E IS AT STAKE H ER E ONE OF T H E  

MOST FUNDAM ENTAL ATTRIBUTES OF 
FREEDOM, NAMELY T H E  FREEDOM  TO 
CHOOSE ONE’S PERSONAL ASSOCIATES.



9

No court has ever gone nearly as far in denying the 
freedom to choose one’s associates as this court is asked 
to go by appellant in this case.

The right to choose associates is a dividing line between 
freedom and slavery. It goes all the way from the choosing 
of club mates to the choosing of a wife. It goes all the 
way from the clubhouse to the home and to all of the rooms 
in the home. When a man has lost that right, he is no 
longer free.

And amid the progressive and devastating shocks of 
the court decisions overruling older cases and promulgating 
new law during the last decade, we have been assured over 
and over again that the Fourteenth and Fifteenth Amend­
ments are applicable to State action only and that Federal 
courts will not strike down or destroy the right of private 
individuals to voluntarily choose their associates.

Some of the most recent decisions, for example, Burton 
v. Wilmington Parking Authority, 365 US 715, 6 L ed 2d 
45, 81 S Ct 856 (1961), and its follower, Simpkins v. 
Moses H . Cone Memorial Hospital, 323 F 2d, (1963, 
Fourth Circuit), have gone far beyond what most lawyers 
thought the older cases declared and have even overruled 
those older cases. Yet the courts have, we submit, con­
tinued to proclaim that private voluntary associations are 
not the subject of Federal sanction or regulation with 
respect to the selection of their members.

But now appellant would have this Court dictate as­
sociation member selection to a group using no State money 
and performing no State function. At most defendants 
merely make recommendations to some State officers or 
units. Plaintiff, or any one, can make such recommenda­
tions. Surely the making of recommendations to a State 
officer or to a State administrative unit “not bound to 
follow the recommendations” is not State action. If such



10

recommendations should be held to be State action, then 
the last barrier against State control of the selection of 
associates is completely demolished. There would remain 
no barrier, and the freedom of association would be an­
nihilated.

II. ON T H E  FACTS TH E R E WAS NO STATE AC­
TIO N  OR T H E  EXERCISE OF STATE POWER 
BY T H E  DENTAL SOCIETIES.

Appellant can find no precedent for his requested ruling. 
Search as he may, appellant has Found no case In point. 
There is no case going nearly as far as appellant asks the 
court to go here.

Appellant gets to the real heart of his argument on 
“State action” on page 12 of his brief. He has just 
referred to the cases holding that public utilities, such as 
railroads and buses, exercising a State grant of franchise 
and near-monopoly, may not discriminate between races, 
may not segregate passengers. Of course, those cases 
do not even approach our case.

And appellant appears to agree with that statement, 
because he uses those cases only as a steping stone to reach 
his statement on page 12 of his brief:

“The broader principle that private bodies in whose 
activities the state is involved to a significant extent 
may not discriminate on the basis of race was applied 
by the Supreme Court in . . .  ”

Immediately thereafter he cites three cases. Not one of 
them is a precedent here. We discuss them below:

1. Burton v. Wilmington Parking Authority, 365 US 
715, 6 L ed 2d 45, 81 S Ct 856 (1961). There the 
court condemned, and held unlawful, segregation in a 
restaurant in a building owned by a municipality and



11

operated under a lease from the municipality. In 
that case, the person discriminating was using State 
property in effecting the discrimination. No such 
property situation exists in our case. We have nothing 
even nearly like it.

2. Simpkins v. Moses H . Cone Memorial Hospital, 
323 F 2d 959, (1963, Fourth Circuit). That case 
was decided on the authority or the mandate of the 
Burton case. The Federal Government and the State 
had contributed substantial funds used (up to 50% 
of the cost) in the construction of the hospital. The 
discriminating hospitals were taking the advantage 
of Federal funds used in constructing the property 
which made the hospital operation and the hospital 
discrimination possible. Again there is no such prop­
erty situation existing in our case. There is nothing 
in our case even nearly like it.

3. Eaton v. Grubbs, 329 F 2d 710, (1964, Fourth 
Circuit). This case was decided on the authority or 
under the mandate of the Burton case and in accord­
ance with the Simpkins case. The Walker Memorial 
Hospital in Wilmington, North Carolina, was using 
property which was conveyed to it by the State and 
which was held under a deed with a reverter clause. 
Again the use of property contributed by the State 
made possible the hospital activities which embraced 
racial discrimination. We had no such property situa­
tion here.

After citing the three cases above, the plaintiff says on 
page 12 of his brief:

“Where a private group exercises the power to select 
the groups which regulate the practice of dentistry . . . ,



12

that group obviously is subject to constitutional limi­
tations.” (Italics added.)

We inquire, what follows from that broad and inappli­
cable statement? Even if that statement is correct, it 
would not apply to appellee Societies after the 1961 and 
1963 North Carolina Statutes were enacted. Appellee no 
longer has the power to select any group which regulates 
the practice of dentistry. Appellee has been stripped of 
every State power which it ever possessed.

Thereafter in his brief and in connection with the argu­
ment as to State action, appellant cites and discusses 
thirteen (13) additional cases. (Brief pp. 12-21). Not one 
of them is in point. We shall discuss them in the order 
of plaintiff’s use.

4. Bell v. Georgia Dental Association, 231 F. Supp 
299, (Northern District o f  Georgia 1964). In a 
case with facts quite similar to the facts of this case 
(with one very important exception) defendant Society 
made a motion to dismiss and that motion was denied. 
The important difference is that the Georgia Society 
was in a position which the defendants herein occupied 
prior to the North Carolina Legislation of 1961. The 
Georgia Society had the statutory right to select the 
members of State examining and regulatory boards. 
Our position is entirely different in that such right 
has been taken away from the defendant Societies. 
The existence of that right in the Georgia Dental 
Association was the turning point of the decision.

5. Anderson v. Martin, 375 US 399, 11 L ed 2d 430, 
84 S Ct 454 (1964). A Louisiana statute requiring a 
State officer to designate the race of candidates on a 
ballot was declared illegal because racially discrimina­
tory. That was direct State action in the conduct of



13

a State election. Of course, there is no relation be­
tween that discriminatory feature and anything which 
defendant Societies do.

6. Barrows v. Jackson, 346 US 249, 97 L ed 1586, 
73 S Ct 1031 (1953). The court held that a State 
court could not properly utilize its state court machi­
nery to award damages for breach of a racially re­
strictive real estate covenant. There is no evidence 
in our case of the utilization by the defendant Societies 
of any court procedure to accomplish any result.

7. Shelley v. Kraemer, 334 US 1, 92 L ed 1161, 68 
S Ct 836 (1948). This case preceded the Barrows 
case and held that the enforcing in equity of a racially 
restrictive covenant in a deed to real estate would 
violate the racial discrimination clauses of the Con­
stitution. Here again in our case the defendant 
Societies are not acting under any contract or covenant 
and are not seeking the aid of a court in any way.

8. Robinson v. Florida, 378 US 153, 12 L ed 2d 771, 
84 S Ct 1693 (1964). This case merely followed and 
applied the doctrine declared by the Supreme Court 
in the prior case of Peterson v. Greenville, 373 US 
244, 10 L ed 2d 323, 83 S Ct 1119 (May 20, 1963). 
So, it held that, where State mandate required that 
separate facilities be provided for each race, the 
owner of premises to which such State mandate ap­
plied was violating the Constitution when he followed 
that State mandate and segregated the races. That 
was a very plain and typical example of the require­
ment of State action for the applicability of consti­
tutional prohibitions. The Court made it very plain 
that the Constitutional provisions did not reach be­
yond “State action” .



14

9. Nixon v. Condon, 286 US 73, 76 L ed 984, 52 S Ct 
484 (1932). In that case the agency which committed 
the condemned discrimination was the executive com­
mittee of a political party acting under and exercising 
power delegated to it by the State. There is no 
similarity whatever between that case and our case. 
There is no power delegated to the Dental Society.

10. National Labor Relations Board v. Southern Bell 
Telephone and Telegraph dompany, 319 US 50, 87 
L ed 1250, 63 S Ct 905 (1943). The Labor Relations 
Board case is not an authority for anything pertinent 
to the case now before the Court. In the Labor 
Board case a corporation had supported and had con­
trolled a company union prior to the enactment of 
the National Labor Relations Act of 1935. In a 
complaint proceeding, the National Labor Relations 
Board found as a fact that domination continued after 
the Act became effective. The Supreme Court held 
that the evidence was sufficient to support the findings 
of the fact finding body. The Court said in part, 
on page 60:

“We are of the opinion that there was substantial 
evidence to justify this conclusion. Since the Asso­
ciation prior to the passage of the National Labor 
Relations Act in 1935 was obviously a company domi­
nated and supported union, the question of the weight 
to be given the passage of time or subsequent efforts 
to dissipate the effect of this early domination is for 
the Board. Its conclusion is an inference of fact which 
may not he set aside upon judicial review because the 
courts would have drawn a difevent inference.” (Italics 
added.)

Some of the critical differences between the Labor 
Board case and our case are: (a) there was a “com­



15

plete cleavage” between the Dental Society and the 
Board of Dental Examiners when the 1961 statute 
deprived the Dental Society of the right to name the 
members of the Board of Dental Examiners. There 
had never been any other relationship between the two. 
(b) It was never the function of the Board of Dental 
Examiners to treat or to deal with the Society in any 
way after their appointment. So, there was no further 
cleavage possible after the cleaving of the appointment 
relationship, (c) There was not a shred of evidence 
in our case that the Dental Society could or did control 
the exercise of any function by the Board of North 
Carolina Dental Examiners, (d) There was in oui- 
case a specific finding by the fact finding body (the 
District Court) that the Dental Society, after the 
1961 Legislative Act, had no power of control over 
the selection or the functioning of the members of 
the Board of Dental Examiners and had not sought 
to influence or control the Board in any way. That 
finding was precisely contrary to the finding of fact 
by the fact finding body in the National Labor Re­
lations Board case. And as said by the Supreme 
Court in the Labor Board case about such a finding 
of fact: “Its conclusion is an inference of fact which 
may not be set aside upon judicial review because 
the courts would have drawn a different inference.”
11. Wilson & Co. v. N LRB, 156 F 2d 577, (1946, 
Tenth Circuit). This was another case like the South­
ern Bell case, growing out of employer and employee 
relationship and evidence as to employer domination 
of employee organizations. There is nothing in com­
mon between that case and the case which is before 
this Court.
12. Terry v. Adams, 345 US 461, 97 L ed 1152, 73 
S Ct 809 (1953). In that case the organization held



16

to be illegally discriminating because of race was found 
in fact to be a political party aided in its membership 
qualifications by the use of the registration books of 
a State political party and aided in its operation by 
county officers. In fact, the court found a conspiracy 
to deprive members of the Negro race of the value 
of their vote. In this case we do not have a political 
party. We do not have any aid from government 
records or from government officers. We do not have 
any conspiracy alleged or proved with respect to de­
fendant Societies or their members.

13. Boman v. Birmingham Transit Co., 280 F 2d 
531 (1960, Fifth Circuit). That was one of the cases 
of a franchised public carrier illegally segregating pas­
sengers. Of course the carrier exercised a public 
franchise and enjoyed a near-monopoly. There is no 
relationship between that case and our case.

14. Falcone v. Middlesex County Medical Society, 
34 N J 582, 170 A. 2d 791 (N. J. Supreme Court 
1961). This was not a case involving racial discrimi­
nation. The plaintiff was not a Negro. He sought 
admission into the medical society and it was ordered 
by the Court, on the specific and unusual ground that 
the medical society in that community had achieved 
an actual monopoly on the practice in the only hos­
pital or in all of the hospitals in the community and 
that such monopoly deprived plaintiff of the means of 
a livelihood. There was presented really what amount­
ed to united action or even a conspiracy to deprive 
the plaintiff of the opportunity of practicing his pro­
fession. There is no such situation existing here. 
The practice of plaintiff’s profession has not been 
interferred with. The defendant Societies do not have 
a monopoly on dental practice. The Dental Societies



17

have not acted in any way to exclude plaintiff or any 
member of his race from any field of dental practice. 
The evidence shows, in fact, that the defendant So­
cieties recommended plaintiff for practice in the Vet­
erans Administration Program.

15. Blende v. Maricopa County Medical Society, 393 
Pac 2d 926 (Arizona Supreme Court, July 8, 1964). 
The case is almost precisely similar to the Falcone 
case. It is a case which followed the Falcone case 
and based its decision on that case. There was no 
question of racial discrimination. A physician, not 
a Negro, sought court mandate for admission to a 
medical society which was found in fact to have a 
monopoly over the practice in all of the hospitals in 
the community. W hat we have said about the Falcone 
case applies equally here.

16. James v. Marinship Corp., 25 Cal 2d 721, 155 
P 2c 329 (1945). This case held that a labor union 
operating under a closed shop agreement and there­
fore having a complete monopoly with respect to 
employment in that industry was precluded from dis­
criminating against Negroes. This is another case 
of a monopoly existing under protection of the lawr. 
There is no fact in that case which is similar to our 
case or resembles any fact proven or found in our case. 
There is no evidence that defendant Societies have 
any power to exclude a Negro dentist from any em­
ployment or that it has ever even attempted to ex­
ercise any such power or is threatening to exercise 
any such power.

Failing to find a precedent in any decided case, Appellant 
speaks at length of “domination” by the defendant Dental 
Societies. Appellant says on page 19 of his brief that



18

the Dental Society is . . the dominant force in regulating 
dentistry in North Carolina”.

Appellant insists that the Dental Society “dominates” 
the selection and the action of the State Board of Dental 
Examiners and the action of various other State and Federal 
agencies.

There is no evidence to support Appellant’s charges. 
All of the evidence is to the contrary. The findings of fact 
by the District Court are precisely contrary to Appellant’s 
charge of domination.

“Dominate” means to rule or to control. Let us look 
with precision at Appellant’s charges of domination.

1. Appellant says that the Dental Society dominated 
the Legislature of North Carolina when it enacted its 1961 
statute and named the members of the statutorily terminated 
Board as the members of the new Board to function until 
their successors should be elected under the new statute. 
There is no evidence that the Dental Society with some 
1214 members had any political influence or sought to 
exercise any political influence or did or could dictate to 
the Legislature of the State of North Carolina what that 
Legislature should do. A charge of domination of the 
Legislature is a reckless charge and a reprehensible charge 
unless it is supported by some evidence. It is libel of a 
State Legislature. We emphasize the fact that neither 
plaintiff nor any witness has made any charge or implication 
that any member of the State Board of Dental Examiners 
was incompetent or was unsatisfactory in the discharge of 
his duties or was not highly qualified to render the dedicated 
and poorly remunerated duties of his job. The presump­
tion would be that the Legislature named the members 
of the Board of Dental Examiners because of the Legisla­
ture’s high regard for those members and the manner in 
which they had discharged their duties.



19

2. Appellant says that the Dental Society dominated the 
election of members after the passage of the 1961 statute. 
Again there is not a shred of evidence to support that 
reckless charge. The court found precisely to the contrary. 
The only domination in a free and honest election is the 
domination by the majority of the votes cast. Appellant 
has not alleged dishonesty in the conduct of elections or 
any threat or conspiracy in connection with the elections 
or nominations of candidates. There is not even a particle 
of evidence that either defendant or any dentist sought to 
influence the free exercise of the free ballot by any other 
dentist.

3. Appellant suggests or intimates that the Dental So­
ciety dominates the actions of the Board of Dental Exami­
ners. There is not a particle of evidence that the Dental 
Society at any time before 1961 or at any time after 1961 
had any connection with or interest in the acts of the State 
Board of Dental Examiners. Not only was there no 
evidence of domination by the Dental Society, but also there 
was no evidence of contact with or advice to, or recom­
mendations to the Board of Dental Examiners by the 
Dental Society.

4. The appellant suggests that the North Carolina 
Dental Society dominates various State and Federal officers 
and administrative units by its recommendations to such 
officers or units. Appellant blithely leaps over the hurdles 
that no such recommendation is binding on the recipient 
and that appellant or any other person or society is free 
to make similar recommendations. Appellant really goes 
to the absurd length of making unsupported charges when 
he includes the Veterans Administration of the United 
States Government as an agency which is dominated By the 
defendant Societies. Surely no court will construe a mere 
recommendation to a State as “State action.”

There is one domination charge resulting in alleged



20

racial discrimination which, although unsupported by evi­
dence, is made by appellant and should be mentioned, we 
think.

On pages 10 and 19 of his brief, appellant complains 
that he was denied the opportunity “to prove that he had 
been denied the right to practice at Charlotte Memorial 
Hospital because of non-membership in the Society” .

In the first place, appellant never put his offer of proof 
in a legally acceptable form. He failed to show precisely 
what question he would put to his witness, and he failed to 
show by the witness what the answer of the witness would 
be. Witness Hawkins was on the stand. Witness Hawkins 
never put in the Record what his testimony would be.

Appellant failed to call an officer or agent of the 
hospital or to request the production of the by-laws or 
records of the hospital. He failed to call any officer of a 
Dental Society to ascertain what would be the testimony 
with respect to any contact or conspiracy between the 
Dental Society and the hospital.

It would appear that plaintiff either waived his objection 
to the exclusion of testimony about the Charlotte Memorial 
Hospital or estopped himself from pursuing his objection 
when he refused to permit a door to be opened for later 
presentation of such evidence. As is disclosed in Appel­
lant’s Appendix, pages 253a and 254a, counsel for de­
fendants attempted to introduce in evidence the “By-laws, 
Rules and Regulations of the Visiting Medical Staff, 
Charlotte Memorial Hospital, Charlotte, North Carolina”. 
Plaintiff objected to the introduction of that evidence. 
Counsel for Plaintiff made this very interesting comment:

“Mr. Heffron: The plaintiff does not consider that
issue relevant to the case and continues its exception
to the striking of our testimony yesterday.” (App. 
254a)



21

Furthermore, if appellant has been denied the right 
to practice in the Hospital, it would seem that his remedy 
is against the Hospital and not against the Dental Society. 
There was not even an allegation or an offer of evidence 
that the Dental Society caused or conspired to cause the 
Hospital to apply any such discriminatory rule, if indeed 
it had such a rule.

Furthermore, even if the Dental Society had conspired 
with the hospital to deny to appellant the opportunity to 
practice in the hospital, there is no proof or offer of proof 
upon which could be predicated the conclusion that such 
action by the Dental Society was State action.

In any event, if the Court erred in its ruling on appel­
lant’s offer of evidence that, at most, could result only 
in a remand for the taking of evidence on that point. 
Such a remand would merely result in trouble and the 
incurrence of additional expenses both by appellant and 
appellee. Appellees have no fear whatsoever about what 
the evidence when taken would show.

III. TH ER E IS NO EVIDENCE OF RACIAL DIS­
CRIM INATION BY EIT H E R  OF T H E  D E­
FENDANT APPELLEES.

The findings of the court below on the question whether 
either Society did in fact discriminate against appellant 
or others because of race are complete and explicit. They 
are set forth in Appendix 56a-58a. In summary those 
findings are that neither Society has a racially discrimina­
tory charter or by law or rule; that neither Society has 
announced or practices a policy of racial discrimination; 
that the evidence discloses merely that plaintiff and four 
(4) other Negro applicant dentists sought the necessary 
endorsements for membership by two members of a District 
Society; that one application was endorsed favorably and



22

that at the time of the close of evidence the application was 
awaiting action of the executive committee of the District 
Society; that the other four applicants, including plaintiff, 
failed to secure the necessary two endorsements.

We submit that each dentist solicited for a membership 
endorsement had the individual and personal right to 
endorse or not to endorse for any reason whatever, includ­
ing a racial reason; that he was under no obligation to 
endorse; that he was under no obligation to disclose his 
reason for failing to endorse. Surely a free individual 
has the right to make a personal decision regarding the 
choice of his associates. And there is not one particle of 
evidence that the making of that decision was anything 
other than a personal decision. There is not even any 
evidence as to what were the individual personal reasons 
for declining such a personal endorsement.

And the District Court concluded as a matter of law 
(Appendix 58a) : “ . . . an individual is free to choose his 
associates.” As we understand the law, as declared up to 
this time, that conclusion was a valid one.

IV. CONCLUSION

We submit that the free voting of an individual dentist 
in an election where persons of different races have equal 
rights to nominate and to vote cannot possibly be State 
action according to the pronouncements of the Federal 
Courts made prior to this time.

We submit that the making of recommendations to 
State officers or administrators, who are under no duty or 
obligation to adopt or follow same and -where anyone 
can make such recommendations, cannot be State action 
according to the pronouncements of our Federal Courts 
made up to this time.



23

We submit that the free refusal of a member of a club 
or a society to endorse for membership in his club or 
society one or several applicants even though they may be 
Negroes, is not State action and is not illegally discrimina­
tory according to the pronouncements by the Federal 
Courts prior to this time.

We submit that the findings of fact made by the Court 
below are proper and are supported by the evidence.

We submit that the conclusions of law made by the Court 
below are in accord even with the most recent decisions 
of the Supreme Court of the United States and of the 
Court of Appeals of the Fourth Circuit.

We submit that there are involved in this case grave 
and critical questions relating to the nondiscriminatory 
administration of justice, and relating to the preservation 
of our basic freedoms and of the very foundations of our 
Democracy.

We submit that the decision of the court below should 
be affirmed.

Respectfully submitted,

W illiam  T. J oyner 
R. C. H owison, J r . 
Attorneys for Defendants 
308 Odd Fellow's Building 
Post Office Box 109 
Raleigh, North Carolina

Of Counsel:
Joyner & Howison 
308 Odd Fellows Building 
Post Office Box 109 
Raleigh, North Carolina