Opinion
No. 8227SC642
Filed 20 September 1983
1. Declaratory Judgment Act 3 — action involving actual controversy — denial of motion to dismiss proper The trial court properly failed to dismiss plaintiff's declaratory judgment action on the basis of a lack of a case or controversy between the parties since the evidence tends to show that plaintiff intended to expel defendant from its membership as soon as the legality of the expulsion hearings were established, and since defendant stated in a letter to plaintiff that expulsion would deprive him of his rights under the law, and that he would take action to protect himself.
2. Brokers and Factors 8 — expulsion from private real estate board There was no merit to defendant's contention that a private real estate board's case had been pre-empted by State action in creating the North Carolina Real Estate Licensing Board since there is no language in the real estate licensing statutes that can be construed as pre-empting reasonable self-regulation by private real estate boards. G.S. 93A-1 et seq.
3. Brokers and Factors 8; Constitutional Law 23 — expulsion from board of realtors — no entitlement of substantive due process review In a declaratory judgment action brought by plaintiff board of realtors in which plaintiff sought a judgment that the hearings in which it expelled defendant had not violated defendant's rights, the trial court did not err in failing to review the substantive aspects of plaintiffs decision to expel defendant. Defendant had no substantive due process right to membership in the plaintiff's organization since the relationship between a private voluntary association and its members is contractual in nature and defendant's substantive rights are derived solely from his contract with plaintiff. Art. I, 19 of the North Carolina Constitution and XIV Amendment to the U.S. Constitution.
4. Brokers and Factors 8; Constitutional Law 24.1 — expulsion from local real estate board — necessity for procedural due process Given the fact that expulsion from a local real estate board may harm a defendant professionally and economically, such an expulsion must be done with some procedural due process. The procedures followed by plaintiff real estate board were adequate to protect defendant's constitutional rights where defendant received timely notice of the complaint, was given an opportunity to present evidence and cross-examine opposing witnesses, and was represented by counsel.
APPEAL by defendant from Owens, Judge. Judgment entered 28 January 1982 in Superior Court, GASTON County. Heard in the Court of Appeals 22 April 1983.
Mullen, Holland Cooper, by Graham C. Mullen and William E. Moore, Jr., for plaintiff appellee.
Lloyd T. Kelso for defendant appellant.
Attorney General Edmisten, by Assistant Attorney General Harry H. Harkins, Jr. and Thomas R. Miller, for North Carolina Real Estate Licensing Board, amicus curiae.
Smith, Moore, Smith, Schell Hunter, by Richmond G. Bernhardt, Jr. and Peter J. Covington, for North Carolina Association of Realtors, Inc., amicus curiae.
Judge JOHNSON dissenting.
Plaintiff brought this action seeking a declaratory judgment that it had conducted disciplinary proceedings against defendant in a lawful manner. Plaintiff, a voluntary trade association, had conducted hearings to determine if defendant, a realtor, violated its Code of Ethics in refusing to return a $2,090.00 deposit to Mr. and Mrs. Hamrick, prospective home buyers. The hearings were conducted in accordance with plaintiff's written procedures. Defendant received notice of the complaint, presented evidence, cross-examined witnesses, and was represented by counsel. Plaintiff decided to expel defendant from its membership until he repaid the disputed deposit to his former clients.
Plaintiff suspended its decision to expel defendant until it obtained a declaratory judgment that the hearings had not violated defendant's rights. The declaratory judgment was sought because defendant had stated, "I plan to take such actions as are necessary to protect myself . . . from harm by the actions of individuals involved in this matter." Both the plaintiff and the trial court construed this as a threat to take action and grounds for a declaratory judgment.
After making findings of fact and conclusions of law, the trial court declared that plaintiff had rendered due and proper process to the defendant, and could proceed with its disciplinary action.
Defendant first contends the trial court should have dismissed the declaratory judgment action due to lack of a case or controversy between the parties. Whether an actual controversy exists must be determined on the facts of each case, but reported decisions do provide some guidelines. Declaratory judgment actions must focus on real and present problems; they must adjudicate the rights, status, or other legal relations of antagonistic litigants. Adams v. N.C. Dept. of N.E.R. and Everett v. N.C. Dept. of N.E.R., 295 N.C. 683, 249 S.E.2d 402 (1978). Additionally, "it is necessary that the Courts be convinced that the litigation appears to be unavoidable." (Citation omitted.) North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 450, 206 S.E.2d 178, 189 (1974).
The controversy in the present case is whether expulsion proceedings have been conducted against defendant without violating his legal rights. The controversy is real and present because (1) plaintiff intends to expel defendant as soon as the legality of the hearings is established; and (2) defendant stated in a letter to plaintiff that expulsion would deprive him of his rights under the law, and that he would take action to protect himself. The present declaratory judgment action clearly adjudicates the rights of antagonistic litigants. Defendant's threat to take action is substantial evidence that litigation appeared unavoidable. Consequently, we hold the declaratory judgment action did involve an actual controversy, and the trial court correctly denied defendant's motion to dismiss.
The defendant's contention that the plaintiff's case had been pre-empted by State action in creating the North Carolina Real Estate Licensing Board, which has taken no action against him, is likewise without merit. The lack of action by the North Carolina Real Estate Licensing Board relates to defendant's qualifications for a state license and is distinct from the right of a voluntary association to regulate conduct of its members. There is no language in the real estate licensing statutes that can be construed as pre-empting reasonable self-regulation by private real estate boards. G.S. 93A-1 et seq.
Defendant next contends the trial court erred in denying defendant's Rule 12(b)(6) motion to dismiss without making findings of fact. The order denying defendant's motion to dismiss shows that the trial court considered matters outside the pleadings. Consequently, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Rule 12(b), N.C. Rules Civil Proc. Rule 56(d) states that if summary judgment is not rendered on the whole case, then the trial court shall, "if practicable," ascertain what material facts exist without substantial controversy, and shall make an order specifying those facts. Defendant has not shown that it was practicable for the trial court to find what facts were uncontroverted. Since defendant did not even file an answer until a week before the trial court ruled on the motion to dismiss, the trial court's refusal to make premature findings of fact is understandable and consistent with the requirements of Rule 56.
Defendant also contends the trial court erred in not reviewing the substantive aspects of plaintiff's decision to expel him. Defendant claims he is entitled to substantive due process review because expulsion from the plaintiff organization would harm his right to pursue his occupation.
The Fourteenth Amendment of the United States Constitution expressly requires due process of law when a state deprives a person of property. However, private action does not require due process even though it may involve a business subject to extensive state regulation. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L.Ed.2d 477, 95 S.Ct. 449 (1974). In distinguishing between state and private action, "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." (Citation omitted.) Id. at 351. The disciplinary proceedings brought by plaintiff were intended to maintain high integrity and professionalism among Gaston County realtors through enforcement of the plaintiff's Code of Ethics. The Code of Ethics and proceedings against defendant do not involve state action since they serve the interests of plaintiff and not, in any direct manner, the State. Defendant's expulsion did not occur pursuant to state law or at the request of the State. There was no joint venture between plaintiff and the State. Consequently, defendant has no claim to Fourteenth Amendment due process.
Though the law of the land clause in Article I, 19, of the North Carolina Constitution is synonymous with Fourteenth Amendment due process — Bulova Watch Co., Inc. v. Brand Distributors of North Wilkesboro, Inc. and Bulova Watch Co., Inc. v. Motor Market, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974) — federal court interpretations of due process, though highly persuasive, are not binding on North Carolina courts. Id. Thus an independent determination of defendant's constitutional rights under the law of the land provision must be made.
Defendant has no substantive due process right to membership in the plaintiff organization, and therefore the trial court properly refused to review all the substantive aspects of defendant's expulsion. The relationship between a private voluntary association and its members is contractual in nature. Bright Belt Warehouse Assn., Inc. v. Tobacco Planters Warehouse, Inc., 231 N.C. 142, 56 S.E.2d 391 (1949). Defendant's substantive rights are derived solely from his contract with plaintiff. By virtue of his membership, defendant is deemed to have consented to all reasonable rules of plaintiff. Id. Plaintiff's Code of Ethics and disciplinary procedures are terms of the contract between plaintiff and defendant. Accordingly, defendant's expulsion is subject to judicial review to determine, first, that the contract terms were not contrary to public policy, Gore v. Ball, Inc., 279 N.C. 192, 182 S.E.2d 389 (1971), and, second, that the expulsion was conducted according to plaintiff's rules which are the terms of the contract with defendant. The trial court conducted this scope of judicial review when it declared that plaintiff acted within its rights and followed its rules in conducting disciplinary proceedings against defendant.
The trial court also declared that plaintiff had rendered due process in disciplining defendant. Defendant contends he did not receive due process because he lacked subpoena power and he received inadequate notice. We agree that defendant deserved some degree of procedural due process. Expulsion from plaintiff organization may harm defendant professionally and economically. He will lose the right to use the established trade name of "realtor," as well as access to the plaintiff's Multiple Listing Service, a valuable instrumentality in the sale of real estate. Given these adverse effects on defendant's standing and business, his expulsion must be done with some procedural due process.
Without attempting to define how much due process is due, we hold the procedures followed by plaintiff were adequate to protect defendant's constitutional rights. Defendant received timely notice of the complaint, was given an opportunity to present evidence and cross-examine opposing witnesses, and was represented by counsel. The hearing panel consisted of impartial persons. Subpoena power, which is part of the state's police power not available to private associations, and formal rules of evidence are not constitutionally required by private disciplinary proceedings. Although defendant claims the notice he received misled him as to what was the complaint, a letter from plaintiff to defendant expressly referred to the actual complaint. Defendant received notice that enabled him to fully respond to the complaint. The trial court properly declared that defendant had been accorded procedural due process.
Decisions in other jurisdictions are in accord with the scope of review set forth in the case sub judice. Bullard v. Austin Real Estate Board, Inc., 376 S.W.2d 870 (Tex.Civ.App. 1964), affirmed the expulsion of a real estate broker from a local real estate board, where the board's rules were followed and the rules satisfied procedural due process. The court observed that a voluntary association can set its own standards as long as they are not contrary to public policy, and that those standards contractually bind members.
In Multiple Listing Service of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So.2d 982 (Miss. 1980), suspension of a realtor was affirmed where disciplinary proceedings were in conformity with board bylaws and procedural due process was given. The court noted that a private association can set its own standards as long as they are not against public policy.
Kendler v. Rutledge, 78 Ill. App.3d 312, 396 N.E.2d 1309 (1979), involved a declaratory judgment action by a real estate broker to challenge sanctions imposed on him by a local real estate board. The court stated it would not substitute its judgment for that of the board since associations should have considerable discretion to conduct their internal affairs; however, the court did review the board action to determine that it followed its own rules and gave fair hearing rights in disciplining the broker.
Cunningham v. Burbank Board of Realtors, 262 Cal.App.2d 211, 68 Cal.Rptr. 653 (1968), held that a member of a real estate board was entitled to a hearing on charges leading to expulsion, and that the hearing must be conducted in accordance with the rules of the board and the law of the land.
Since the proceedings in this case were fairly conducted in accordance with rules that do not violate public policy, the judgment appealed from is
Affirmed.
Judge HILL concurs.
Judge JOHNSON dissents.