Maines v. City of Greensboro

265 S.E.2d 155, 300 N.C. 126, 1980 N.C. LEXIS 1034

Opinion

BRANCH, Chief Justice.

The primary questions presented for review center on the following Greensboro City Ordinance:

Section 1. That all permanent city employees employed on and after 2 September 1976 shall be required to be permanent residents of the City of Greensboro; provided, that any such employees shall be given ninety (90) days to move their residence inside the city limits of Greensboro from the date of employment.

Section 2. All existing permanent employees employed before 2 September 1976 who are presently living outside the city limits of the City of Greensboro may continue to reside outside the city limits until such time as any such permanent employees either move their residence inside the city limits or their residence is annexed within the city limits. Thereafter, such employees may not move their residence outside the city limits of the City of Greensboro.

Section 3. As of 2 September 1976, all permanent city employees living inside the city limits of the City of Greensboro must continue to reside within the city limits at all times.

Section 4. The City Manager is hereby directed to implement the above mentioned residency requirements within the personnel rules and regulations of the City of Greensboro. In addition, the City Manager may prescribe other reasonable standards with regard to residency requirements as he may determine to be in the best interest of the City of Greensboro which requirements shall be supplemental to and consistent with the standards and criteria set out above.

Plaintiff first contends that the ordinance is unconstitutional on its face in that it delegates excessive authority to the City Manager and provides no guidelines for the exercise of his discretion. In the alternative, plaintiff argues that the ordinance is unconstitutional as applied since the evidence indicates that the City Manager allowed certain Greensboro residents to move outside the City limits after the ordinance was adopted.

Defendant contends, on the other hand, that the terms of the ordinance do not vest excessive discretion in the City Manager since he is only authorized to prescribe reasonable standards which are “consistent with the standards and criteria” specifically enumerated in the body of the ordinance. Defendant further argues that the ordinance is not unconstitutional as applied. Defendant maintains that the City Manager granted exceptions to the City residents who had begun construction on homes outside the City or otherwise changed their positions prior to the adoption of the ordinance. Such action was necessary, defendant argues, to prevent undue financial hardship. Defendant submits that the City Manager’s actions were entirely reasonable and that, in effect, he merely treated certain employees who had “begun to move” their residences prior to 2 September 1976 as if they had already moved outside the City.

We note at the outset that the Court of Appeals held that plaintiff lacked standing to challenge the constitutionality of the ordinance, since he “was discharged for a violation of Section 3 of the ordinance, and all exceptions granted have been in accord with Section 2 of the ordinance.” We disagree. The evidence is clear, and defendant does not deny, that certain employees were permitted to move out of the City after September 1976 due to commitments made prior to the adoption of the ordinance. The exceptions granted were thus exceptions to the requirements of Section 3, and that is the section under which plaintiff was discharged.

Standing to challenge the constitutionality of a legislative enactment exists where the litigant has suffered, or is likely to suffer, a direct injury as a result of the law’s enforcement. Turner v. City of Reidsville, 224 N.C. 42, 29 S.E. 2d 211 (1944). Plaintiff was discharged from employment for violation of the ordinance. He alleges that the ordinance under which he was discharged is void on its face, or alternatively, that it was applied with an uneven hand since he was discharged for the same course of conduct which others were permitted to follow without penalty. In our view, plaintiff has suffered a direct injury under the very terms of the ordinance which he now seeks to challenge. We therefore hold that plaintiff has standing to litigate the issue of the constitutionality of the ordinance.

Turning now to the merits of plaintiff’s constitutional challenges, we recognize the validity of the general rule that an ordinance on its face must be fair and impartial and must not permit unwarranted discrimination. Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183 (1927); 5 E. McQuillin Municipal Corporations § 18.09 (3d Ed. 1969). Furthermore, it is well settled that an ordinance which vests unlimited or unregulated discretion in a municipal officer is void. Bizzell v. Board of Aldermen, 192 N.C. 348, 135 S.E. 50 (1926).

Plaintiff alleges that Section 4 of the challenged portion violates the general rule by vesting unlimited discretion in the City Manager to enforce the ordinance. Section 4 of the challenged ordinance directs the City Manager to implement the rules concerning residency and, in addition, to “prescribe other reasonable standards with regard to residency requirements as he may determine to be in the best interest of the City of Greensboro which requirements shall he supplemental to and consistent with the standards and criteria set out above.” [Emphasis added.] The plain language of the ordinance directs that any standard promulgated by the City Manager must be consistent with the standards set out in the ordinance. Section 3 of the ordinance makes it clear that employees living inside the City limits “must continue to reside within the City at all times.” [Emphasis added.] So plain a directive leaves little, if any, room for the City Manager, in his discretion, to prescribe other supplemental standards consistent with the standards of Section 3. By no stretch of the imagination could we say that the City Manager was vested with unlimited or unbridled discretion in administrating the ordinance. We therefore hold that, on its face and by its plain terms, Section 4 of the ordinance does not vest unfettered discretion in the City Manager.

Plaintiff contends alternatively that the City Manager has made several exceptions to the requirements of Section 3 and that enforcing the ordinance only as to him violates the constitutional guarantee of equal protection of the laws. Plaintiff thus submits that the ordinance is unconstitutional as applied.

It is well established that legislation may be fair on its face and yet be void as a violation of equal protection because it is applied unequally to persons similarly situated. Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064 (1886). “An actual discrimination arising from the method of administering a law is as potent in creating a denial of equality of rights as a discrimination made by law.” 16A Am. Jur. 2d “Constitutional Law” § 802 (1979); see Norris v. Alabama, 294 U.S. 587, 79 L.Ed. 1074, 55 S.Ct. 579 (1935).

On the other hand, actions of public officials are presumed to be regular and done in good faith. Philbrick v. Young, 255 N.C. 737, 122 S.E. 2d 725 (1961), and the burden is on the challenger to show that the actions as to him were unequal when compared to persons similarly situated. See Snowden v. Hughes, 321 U.S. 1, 88 L.Ed. 497, 64 S.Ct. 397 (1944), rehearing denied, 321 U.S. 804, 88 L.Ed. 1090, 64 S.Ct. 778 (1944). The initial question then is whether plaintiff has met his burden of showing that he received treatment different from others similarly situated. 16A Am. Jur. 2d, supra § 803.

In the instant case, it is uncontroverted that the City Manager permitted certain residents of the City to move outside the City after the effective date of the ordinance. It is equally un-controverted that those persons granted exceptions had, in some way, committed themselves, prior to that date, to the buying or leasing of a residence outside the City, and that the City Manager granted exceptions to relieve those persons of the undue financial hardship which would result from strict compliance with the ordinance. The Manager thus elected to treat those particular employees as if they had already completed the move outside the City prior to the effective date of the ordinance.

On the other hand, there is no indication in the record that plaintiff had entered into any type of commitment to construct or rent a residence outside the City prior to 2 September 1976, the date of adoption of the ordinance. All of the evidence indicates that two months following its adoption, plaintiff merely requested that he be allowed to change his address form so as to reflect an address different from that listed as of 2 September 1976. Nothing in the record indicates that any person was in fact granted an exemption who did not already have a commitment to buy or lease a residence outside the City. In our view, the denial of plaintiff’s request to change his address form did not amount to enforcing the ordinance against him in an unequal manner compared with others similarly situated. We therefore hold that the ordinance is not a denial of equal protection as applied to plaintiff.

Plaintiff finally contends that his right to due process of law was denied because the conclusion of the hearing board that he violated the ordinance is not supported by competent evidence in the record. He submits that all of the competent evidence supports his contention that he resided in Surry County at all times relevant to this matter, and that the conclusion reached by the hearing board and the City Manager is not binding on this Court. We disagree.

The proper procedure to review a determination by an administrative agency where none is provided by statute is to petition for a writ of certiorari to the Superior Court. Bratcher v. Winters, 269 N.C. 636, 153 S.E. 2d 375 (1967). Plaintiff has not sought judicial review of the administrative determination that he moved his residence outside the city limits but rather filed an original action in Guilford County Superior Court. The general rule is that an essential issue of fact which has been litigated and determined by an administrative decision is conclusive between the parties in a subsequent action. 2 Am. Jur. 2d “Administrative Law” § 502 (1962). We are therefore bound by the determination that plaintiff moved outside the City limits of Greensboro.

Furthermore, even if we were not bound by that determination, the scope of our review would be limited to the question of whether any competent evidence in the record supports the finding. In re Burris, 261 N.C. 450, 135 S.E. 2d 27 (1964). In this case, there is evidence indicating that plaintiff gave the Greensboro ad dress on at least two occasions before and after 2 September 1976 and that he spent considerable time at that address. While plaintiff submitted numerous exhibits indicating that he had on other occasions given a Surry County address, we are of the opinion that there is competent evidence in the record tending to show that plaintiff resided in Greensboro to support the finding that he moved outside the City limits in violation of the ordinance.

Plaintiff also argues that he was denied due process because he was not afforded an adequate hearing. A review of the proceedings in this case indicates otherwise. Plaintiff was informed by letter dated 27 May 1977 that a hearing would be held on 31 May 1977 concerning his alleged violation of the ordinance, and that he was entitled to have someone accompany or represent him at the hearing. A departmental hearing was held before a board consisting of various members of the fire department, and plaintiff was permitted to put on evidence. Plaintiff was notified subsequently of the decision to terminate his employment and was given the reasons for the decision. He then appealed the decision to the City Manager and was permitted a hearing before the Manager with the opportunity to offer any additional facts in support of his case.

At the threshold of any procedural due process claim is the question of whether the complainant has a liberty or property interest, determinable with reference to state law, that is protect-able under the due process guaranty. Bishop v. Wood, 426 U.S. 341, 48 L.Ed. 2d 684, 96 S.Ct. 2074 (1976); Presnell v. Pell, 298 N.C. 715, 260 S.E. 2d 611 (1979). We have consistently held that, “[n]othing else appearing, an employment contract in North Carolina is terminable at the will of either party,” Presnell v. Pell, supra, and that such a contract is not a sufficient proprietary interest to require full-scale constitutional protection in the form of a pretermination hearing. Id.

Furthermore, even if plaintiff’s interest in his employment were sufficient to invoke constitutional requirements of prior notice and hearing, the evidence here clearly indicates that he received prior notice and hearing. We therefore hold that plaintiff was not denied the right to due process of law under the four.teenth amendment to the United States Constitution.

The decision of the Court of Appeals affirming the entry of summary judgment in favor of defendant is

Modified and affirmed.