Darnell v. North Carolina Department of Transportation & Highway Safety

30 N.C. App. 328 | N.C. Ct. App. | 1976

ARNOLD, Judge.

This proceeding began when petitioner sought judicial review, under Article 33 of Chapter 143 of the General Statutes, of action by the respondent agencies in discharging him as a member of the State Highway Patrol. Petitioner does not contend that any of his constitutional rights have been violated, but that certain regulations of the Policies and Procedures Manual of the State Highway Patrol in effect in 1971 were unconstitutionally vague. He also contends that respondents had no basis to discharge him.

Petitioner is not a public official elected for a specific term. He is not under contract with respondents to work for any specified duration, and he has no constitutional right to continue employment as a member of the Highway Patrol. See Bishop v. Wood, _ U.S _, _ S.Ct. _ (decided 10 June 1976); Slochower v. Board of Ed. of N. Y., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Still v. Lance, 279 N.C. 254, 182 S.E. 2d 403 (1971). Moreover, no statute in North Carolina confers upon this petitioner tenure “or the right to judicial review of an administrative action terminating the employment.” Nantz v. Employment Security Comm., 290 N.C. 473, 226 S.E. 2d 340 (1976).

Article 33 of Chapter 143 of the General Statutes, entitled “Judicial Review of Decisions of Certain Administrative Agencies,” in effect at the time petitioner began this action [subsequently repealed effective 1 February 1976] defines “administrative decision” to mean “any decision, order or determination rendered by an administrative agency in a proceeding in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an opportunity for agency hearing.” In the recent case of Nantz v. Employment Security Comm., supra, the North Carolina Supreme Court said that it was clear that this statute “does not contemplate judicial review of a simple administrative action such as the [among others] . . . discharge of an employee, but contemplates a determination of rights and duties of persons . . . subject to the regulatory authority of the agency. Thus, unless the petitioner had a constitutional right to an agency hearing prior to her dismissal, the action of the Employment Security Commission in discharging her was not subject to judicial review and its motion to dismiss should have been allowed by the Superior Court.”

In the instant case petitioner had no constitutional right to a hearing before the respondent agencies prior to his dismissal. The superior court had no jurisdiction to review the action taken by respondents in discharging petitioner and should have dismissed this action.

Judgment of the Superior Court is hereby vacated and the appeal is

Dismissed.

Judges Parker and Hedrick concur.