Jacobs v. City of Asheville

• Decision Date: 18 April 2000
• Docket Number: No. COA99-526.,COA99-526.
• Citation: 137 NC App. 441,528 S.E.2d 905
• Court: North Carolina Court of Appeals
• Parties: Jennifer JACOBS, Plaintiff, v. CITY OF ASHEVILLE, Defendant.

528 S.E.2d 905

137 NC App. 441

Jennifer JACOBS, Plaintiff, v. CITY OF ASHEVILLE, Defendant.

No. COA99-526.

Court of Appeals of North Carolina.

April 18, 2000.

Van Winkle, Buck, Wall, Starnes, and Davis, P.A., by Michelle Rippon; and George Weaver, II, Asheville, for plaintiff appellee.

Patla, Straus, Robinson & Moore, P.A., by Sharon Tracey Barrett and Alan Z. Thornburg; and Robert W. Oast, Jr., Asheville, for defendant appellant.

HORTON, Judge.

The City contends the trial court erred in determining that the provision of the Asheville Civil Service law providing for a jury trial de novo is constitutional, and also erred in determining that plaintiff's complaint does state a claim for which relief may be granted. The order entered by the trial court was clearly interlocutory. However, we have previously held that an order denying a motion for a jury trial is appealable because it deprives the appellant of a substantial right. In re Ferguson, 50 N.C.App. 681, 274 S.E.2d 879 (1981). Our Supreme Court has ruled that an order granting a jury trial also affects a substantial right, and thus is immediately appealable. Faircloth v. Beard, 320 N.C. 505, 507, 358 S.E.2d 512, 514 (1987), overruled on other grounds by Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989)

. We hold, therefore, that the order of the trial court in this case affected a substantial right of the City, and the appeal from that order is properly before us. In light of our holding, we need not consider defendant's petition for writ of certiorari.

The City contends that the provision of the Asheville Civil Service Law granting a de novo jury trial to an appellant from the decision of its Civil Service Board is unconstitutional because it violates the separation of powers between the branches of state government guaranteed by Article I, § 6 of the North Carolina Constitution. ("The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other.") The City argues that a review of the Civil Service Board's decision by the superior court under the de novo standard violates this constitutional guarantee because it allows the judicial branch to substitute its judgment for that of the Asheville City Manager on a personnel matter. We disagree for the reasons set out below.

It is familiar learning that there is a presumption in favor of the constitutionality of a statute enacted by the legislature. Vinson v. Chappell, 3 N.C.App. 348, 350, 164 S.E.2d 631, 632 (1968), aff'd, 275 N.C. 234, 166 S.E.2d 686 (1969). Statutes are to be upheld unless it "clearly, positively, and unmistakably appears" that they are unconstitutional; a "mere doubt" does not justify the courts in declaring an act of the legislature unconstitutional. Id. The burden of establishing that a statute is unconstitutional is upon the party challenging the legislation. Mobile Home Sales v. Tomlinson, 276 N.C. 661, 668, 174 S.E.2d 542, 548 (1970). We hold that the City of Asheville has not carried the burden of showing the unconstitutionality of the portion of its Civil Service Law allowing a de novo review in the superior court of the decision of its Civil Service Board.

As originally enacted in 1953, the Asheville Civil Service Law established a Department of Civil Service as a part of Asheville city government. The Department of Civil Service was to be managed by a Director, acting in cooperation with a Civil Service Board. 1953 N.C. Sess. Laws ch. 757, § 1. The Civil Service Board was to make rules for "the appointment, promotion, transfer, layoff, reinstatement, suspension and removal of employees in the qualified service." After a public hearing, and approval by the city council, the rules were to be in full force and effect. Id. at § 4. However, the 1953 Act did not provide the mechanism for judicial review of a decision of the Board. In In re Burris, 261 N.C. 450, 453, 135 S.E.2d 27, 30 (1964), our Supreme Court outlined the proper procedure to secure review of an adverse decision of the Civil Service Board:

In view of the provisions of the statute creating the Civil Service Board of the City of Asheville, and the procedure outlined in Section 14 thereof, we hold that a hearing pursuant to the provisions of the Act with respect to the discharge of a classified employee of the City of Asheville by said Civil Service Board, is a quasi-judicial function and is reviewable upon a writ of certiorari issued from the Superior Court.

Id. (citations omitted) (emphasis in original). Burris is in accord with the long-settled rule in North Carolina that "certiorari is the appropriate process to review the proceedings of inferior courts and of bodies and officers exercising judicial or quasi-judicial functions in cases where no appeal is provided by law." Russ v. Board of Education, 232 N.C. 128, 130, 59 S.E.2d 589, 591 (1950) (citations omitted) (emphasis in original).

In 1977, the General Assembly amended the Asheville Civil Service Law to provide, among other things, that

[w]henever any member of the classified service of the City of Asheville is discharged, suspended, reduced in rank, transferred against his or her will, or is denied any promotion or raise in pay which he or she should be entitled to, that member shall be entitled to a hearing before the Civil Service Board of the City of Asheville to determine whether the action complained of is justified.

....

At such hearing, the burden of proving the justification of the act or omission complained of shall be upon the City of Asheville and the member requesting the hearing shall be entitled to inspect and copy any records upon which the city plans to rely at such hearing, provided that such records are requested in writing by the member or his attorney prior to the day set for the hearing.

The civil service board shall render its decision in writing within five days after the conclusion of the hearing. If the board determines that the act or omission complained of is not justified, the board shall order to rescind whatever action the board has found to be unjustified and may order the city to take such steps as are necessary for a just conclusion of the matter before the board. Upon reaching its decision, the board shall immediately inform the city clerk and the member requesting the hearing of the board's decision and shall do so in writing.

Within 10 days of the receipt of notice of the decision of the board, either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo. The appeal shall be effected by filing with the Clerk of the Superior Court of Buncombe County a petition for trial in superior court, setting out the facts upon which the petitioner relies for relief. If the petitioner desires a trial by jury, the petition shall so state.

1977 N.C. Sess. Laws ch. 415, §§ 1, 4, 5, and 6. Later in the 1977 Session, the legislature amended one of the provisions of Chapter 415, but that amendment is not relevant to the questions raised by this appeal. 1977 N.C. Sess. Laws ch. 530, § 1.

Following the 1977 amendments, this Court had occasion to define the scope of a de novo hearing in the Buncombe County Superior Court on appeal from a decision of the Board. We stated in Warren v. City of Asheville, 74 N.C.App. 402, 328 S.E.2d 859, disc. review denied, 314 N.C. 336, 333 S.E.2d 496 (1985), that trial de novo "`vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.' ... `This means that the court must hear or try the case on its merits from beginning to end as if no trial or hearing had been held by the Board and without any presumption in favor of the Board's decision.'" Id. at 405-06, 328 S.E.2d at 862 (emphasis added) (quoting from In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964)).

Warren involved the appeal of an Asheville police officer, whose dismissal from the police force was upheld by the Civil Service Board. Pursuant to the same Civil Service Law before us in this case, Officer Warren appealed to the Buncombe County Superior Court and requested a trial by jury. The jury found that the Asheville Chief of Police was not "justified" in discharging Warren from employment; the superior court entered judgment based on the jury verdict; and the City appealed to this Court, alleging error. This Court affirmed the judgment of the superior court, noting that where a de novo standard applies, the affirmance by the Civil Service Board of the decision of the Chief of Police "is to be given no presumption of validity, and the jury is to make its own determination, under proper instructions from the trial court, on whether the Police Chief had justification for the actions he took against [Officer Warren]." Id. at 406, 328 S.E.2d at 862.

We find further support in In re Hayes for our view that the legislature may constitutionally provide for a de novo review of the quasi-judicial decision of an agency. In Hayes, the parents of a school child requested that their child be reassigned to another high school for the coming school year. The Fremont City Board of Education denied their request, and the parents appealed to the Wayne County Superior Court. By consent of the parties, a referee was appointed to hear the evidence, make findings of fact, state his conclusions of law arising from the facts, and report to the Court. The referee held an extensive hearing, and found, among other things, that the student seeking reassignment needed certain courses for college admission not available to her at the school to which she was originally assigned, and concluded that her reassignment would "be for her best interest, and that her reassignment will in nowise interfere with the proper administration of said school...." In re Hayes, 261 N.C. 616, 619, 135 S.E.2d 645, 647 (1964). The Board of...