Grissom v. North Carolina Dept. of Revenue

• Decision Date: 02 November 1977
• Docket Number: No. 7710SC1,7710SC1
• Citation: 34 N.C.App. 381,238 S.E.2d 311
• Court: North Carolina Court of Appeals
• Parties: Josepha S. GRISSOM v. NORTH CAROLINA DEPARTMENT OF REVENUE.

Page 311

238 S.E.2d 311

34 N.C.App. 381

Josepha S. GRISSOM v. NORTH CAROLINA DEPARTMENT OF REVENUE.

No. 7710SC1.

Court of Appeals of North Carolina.

Nov. 2, 1977.

Tharrington, Smith & Hargrove by J. Harold Tharrington, Raleigh, for respondent-appellee.

ARNOLD, Judge.

In December 1974, the appellant petitioned Superior Court of Wake County for an order, pursuant to G.S. 143-312, to stay the decision of the Department of Revenue (the Department) terminating petitioner's employment, and for judicial review of the Department's decision pursuant to G.S. 143-314.

In May 1975, Judge Brewer of Superior Court, Wake County, dismissed the action on the grounds that the petitioner was not entitled to judicial review since he had not exhausted his administrative remedies. In Grissom v. Dep't of Revenue, 28 N.C.App. 277, 220 S.E.2d 872, cert. denied 289 N.C. 613, 223 S.E.2d 391 (1976), this Court reversed that order, holding that petitioner was not required, before seeking judicial review, to appeal to the State Personnel Board which could only render an advisory recommendation and which could not grant petitioner the reinstatement he sought. The matter was remanded to Superior Court for judicial review. Before the Superior Court could review petitioner's dismissal, the Supreme Court of North Carolina decided the case of Nantz v. Employment Security Commission, 290 N.C. 473, 226 S.E.2d 340 (1976), which held that, since, under then existing law, employment by the State does not ipso facto confer a property right in the position, petitioner was not deprived of due process of law when she was dismissed without a hearing; and that, since Article 33, Chapter 143 of the General Statutes does not provide for judicial review of such an administrative action as discharging an employee, the employee is not entitled, unless it is a matter of constitutional right, to an agency hearing prior to being discharged. This Court followed that decision in Darnell v. Department of Transportation, 30 N.C.App. 328, 226 S.E.2d 879, cert. denied 290 N.C. 776, 229 S.E.2d 32 (1976). Upon remand the superior court based its findings on the Darnell decision and concluded that petitioner Grissom did not have a constitutional right to a hearing, and that he was not entitled to judicial review of the termination of his employment.

Petitioner argues on appeal that, since his petition may also be construed as a complaint and since he has alleged facts to show that he was dismissed solely because he exercised his constitutional rights of freedom of speech and freedom of association under the First and Fourteenth Amendments, the trial court erred in concluding that it did not have jurisdiction. He argues, therefore, that he did have a constitutional right to a hearing and judicial review, and that the superior court had original subject matter jurisdiction pursuant...