Annotate this Case

230 S.E.2d 769 (1976)

31 N.C. App. 641


No. 7624SC502.

Court of Appeals of North Carolina.

December 15, 1976.

*770 Chambers, Stein, Ferguson & Becton by James C. Fuller, Jr., Charlotte, for plaintiff.

Ronald W. Howell, Marshall, for defendants.

MARTIN, Judge.

The plaintiff's complaint was dismissed, pursuant to G.S. 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief could be granted. The sole issue before this Court is whether the trial court erred in dismissing the case under this rule. The defendants contend that dismissal was proper because the trial court did not have jurisdiction to entertain the case until the plaintiff had exhausted all the administrative remedies provided by G.S. 115-142. We agree with this contention.

The General Assembly has enacted an exhaustive statute concerning the employment and dismissal of public school teachers in North Carolina. This statute, G.S. 115-142, creates detailed procedures for settling contracts, dismissals, and demotions and is commonly referred to as the Tenure Act.

The pertinent sections of G.S. 115-142 are summarized as follows:

"(h) Procedure for Dismissal or Demotion of Career Teacher. "(1) A career teacher may not be dismissed, demoted, or reduced to part-time employment except upon the superintendent's recommendation. "(2) Before recommending to a board the dismissal or demotion of the career teacher, the superintendent shall give written notice to the career teacher by certified mail of his intention to make such recommendation . . .. "(3) Within the 15-day period after receipt of the notice, the career teacher may file with the superintendent a written request for . . . (i) a review of the superintendent's proposed recommendation by a panel of the Professional Review Committee . . .. "(4) If a request for review is made, the superintendent, within five days of filing such request for review, shall notify the Superintendent of Public Instruction who, within seven days from the time of receipt of such notice, shall designate a panel of five members of the Committee (at least two of whom shall be lay persons) who shall not be employed in or be residents of the county in which the request for review is made, to review the proposed recommendations of the superintendent. . .. "(i) Investigation by Panel of Professional Review Committee; Report; Action of Superintendent; Review by Board. * * * * * * "(4) When the panel has completed its investigation, it shall prepare a written report and send it to the superintendent and teacher. The report shall contain an outline of the scope of its investigation and its finding as to whether or not the grounds for the recommendation of the superintendent are true and substantiated. . . . "(5) Within five days after the superintendent receives the report of the panel, he shall submit his written recommendation for dismissal to the board with a copy to the teacher . . .. "(6) Within seven days after receiving the superintendent's recommendation and before taking any formal action, the board shall notify the teacher by certified mail that it has received the superintendent's recommendation and the report of the panel. The notice shall state that if the teacher requests a hearing before the board on the superintendent's recommendation, a hearing will be provided at the time and place specified in the notice. * * * * * * "(n) Appeal.Any teacher who has been terminated by action of the board after a hearing pursuant to subsections (k) or (l) shall have the right to appeal from the decision of the board to the superior court for the judicial district in which the teacher is employed. The appeal shall be filed within a period of 30 days after notification *771 of the decision of the board. The cost of preparing the transcript shall be borne by the board."

Plaintiff's complaint clearly reveals that, until the time this lawsuit was instituted, she had proceeded under the Tenure Act. However, at the time the plaintiff's complaint was filed, there still remained certain administrative remedies provided by G.S. 115-142 to which the plaintiff had not resorted. For example, although the plaintiff had requested a hearing pursuant to G.S. 115-142(i)(6), she failed to resort to this hearing to present her side of the dismissal issue. In fact, she even prevented this hearing from ever taking place by bringing the present action for damages and obtaining a preliminary injunction. In addition, the plaintiff failed to appeal her dismissal as provided in G.S. 115-142(n). Instead of filing an appeal with the superior court after the board hearing and after dismissal, she brought the instant action in the superior court before either of these events took place.

In North Carolina, our courts have held that when the Legislature has provided an effective administrative remedy by statute, then that remedy is exclusive. Wake County Hospital v. Industrial Commission, 8 N.C.App. 259, 174 S.E.2d 292 (1970). See also 1 Strong, N.C. Index 3d, Administrative Law, ยง 2 (1976). In addition, our courts have held that not only is the administrative remedy exclusive but also a party must pursue it and exhaust it before resorting to the courts. See King v. Baldwin, 276 N.C. 316, 172 S.E.2d 12 (1970); Garner v. Weston, 263 N.C. 487, 139 S.E.2d 642 (1965); Sinodis v. Board of Alcoholic Control, 258 N.C. 282, 128 S.E.2d 587 (1962); Employment Security Commission v. Kermon, 232 N.C. 342, 60 S.E.2d 580 (1950); Stevenson v. N. C. Department of Insurance, N.C.App., 229 S.E.2d 209 (filed November 3, 1976). See also 1 Strong, N.C. Index 3d, supra.

Our Supreme Court, in the case of Elmore v. Lanier, 270 N.C. 674, 155 S.E.2d 114 (1967), has made the doctrine of the exhaustion of administrative remedies quite clear. In Elmore, the Commissioner of Insurance suspended the plaintiff's insurance license after a six-month investigation and charged him with some twenty-two violations. As in the instant case, a time was set for an administrative hearing on the charges against the plaintiff to determine what final action should be taken. Before this hearing could be concluded, the insurance agent, like the teacher in this appeal, went to the superior court and obtained an order restraining the Commissioner from proceeding under the legislative enacted administrative hearing and from doing any other act on the charges against the plaintiff. As in G.S. 115-142, the insurance agent, just like the appellant teacher before us, had the right to have any license revocation reviewed by filing a petition in the superior court within 30 days after the time of any final order of revocation. This case was appealed to the North Carolina Supreme Court and in an opinion by Justice Pless, it was held that the cause of action to restrain the Commissioner of Insurance from proceeding in accordance with the administrative procedure was not proper because there had been a failure to exhaust the administrative remedies provided.

This doctrine of exhausting administrative remedies has long been applied by the Supreme Court of this State. The doctrine, for example, has often been employed in taxpayer cases where the statutes provide administrative channels through which a taxpayer may question the appraisal of his property. Such cases have held that

". . . it is the accepted position that a taxpayer is not allowed to resort to the courts in cases of this character until he has pursued and exhausted the remedies provided before the duly constituted administrative boards having such matters in charge." (Citations omitted.) Manufacturing Co. v. Commissioners, 189 N.C. 99, 103, 126 S.E. 114, 116 (1925). See also 1 Strong, N.C. Index 3d, supra.

The doctrine is also not new to this Court and has frequently been used in the past. See Wake County Hospital v. Industrial Commission, supra.

*772 Justice Pless, in speaking for the Court in Elmore v. Lanier, supra, on the collateral attack of the administrative procedure enacted by the Legislature stated:

"To permit the interruption and cessation of proceedings before a commission by untimely and premature intervention by the courts would completely destroy the efficiency, effectiveness, and purpose of the administrative agencies. To allow it would mean that in some instances a case might pend in the courts until a jury trial could be held, which would frequently cause unjustified delay, and result in thwarting the purpose for which the administrative investigation was established. . .." Elmore v. Lanier, supra, 270 N.C. at 678, 155 S.E.2d at 116.

We agree with Justice Pless's concern. Legislation of the type outlined by G.S. 115-142 has become necessary in many fields where matters of regulation and control may, and must, be handled by appropriate commissions and agencies that are particularly qualified for this purpose. Our Legislature has concluded that many areas of concern are more efficiently and more practically disposed of if handled initially by the administrative process rather that the courts. This has been particularly true in matters such as workmen's compensation, utility rates, insurance rates, and the dismissal and demotion of teachers. In order to expedite matters in these areas of concern, the Legislature has created administrative agencies, commissions, and elaborate proceedings for hearings and appeals. To allow the courts to prematurely interrupt or stop these administrative proceedings would completely negate the effectiveness and purpose for which they were statutorily created.

G.S. 115-142 provides the administrative channels through which an individual public school teacher may question and obtain review of his or her dismissal or demotion. By virtue of this statute, the Legislature has provided adequate administrative means whereby a teacher may contest the actions taken against him or her without first having to resort to the courts, and ample safeguards have been provided by appeals to the courts, at the proper time, to protect a teacher from any improper or illegal results.

In the instant case, the plaintiff had not exhausted her administrative remedies before resorting to the courts. We therefore conclude that the trial court's dismissal pursuant to G.S. 1A-1, Rule 12(b)(6) was proper and the judgment appealed from is


BROCK, C. J., and VAUGHN, J., concur.