in the Supreme Court on 12 December 2017.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, __ N.C.App. __, 800
S.E.2d 118 (2017), reversing an order entered on 22 December
2015 by Judge William H. Coward in Superior Court, Buncombe
McGuire, Wood & Bissette, P.A., by Sabrina Presnell
Rockoff; and City of Asheville City Attorney's Office, by
Robin Currin, Kelly Whitlock, and John Maddux, for
C. Hunter for respondent-appellant.
MARTIN, Chief Justice.
Robert H. Frost, a police officer in the Asheville Police
Department, was accused of using excessive force against a
citizen. The Asheville Police
began an administrative investigation into the incident and
suspended Officer Frost during the course of the
investigation. After the investigation had been completed, a
panel of supervisors in Officer Frost's chain of command
unanimously recommended to the City Police Chief that Officer
Frost be terminated. The City Police Chief agreed with the
panel's recommendation and terminated Officer Frost.
Officer Frost appealed his termination to the Asheville Civil
Service Board, which conducted a three-day hearing. The Civil
Service Board concluded that the City had "failed to
show that [excessive force] was used" and had
"failed to provide the employee, Robert Frost, with
adequate due process protections in this matter." The
Civil Service Board concluded that Officer Frost's
termination was not justified, that his termination should be
rescinded, and that his employment should be reinstated with
back pay and benefits.
to the Asheville Civil Service Law, the City filed a petition
for a trial de novo in the Superior Court of Buncombe County
to determine whether Officer Frost's termination was
justified. Officer Frost-who, because the City had filed the
petition in the case, was the respondent-filed a timely
response to the petition, requesting a jury trial. The City
moved to strike Officer Frost's request for a jury trial,
claiming that Officer Frost had no constitutional or
statutory right to a jury trial. The superior court denied
the City's motion, concluding that the Civil Service Law
incorporates Rule 38 of the North Carolina Rules of Civil
Procedure and that a respondent has the right to request a
jury trial by following the procedures set out in that rule.
interlocutory appeal, the City appealed this denial to the
Court of Appeals. The Court of Appeals reversed the superior
court, concluding that "only petitioner City of
Asheville had the right to request a jury trial."
City of Asheville v. Frost, __ N.C.App. __, __, 800
S.E.2d 118, 123 (2017). Judge Robert N. Hunter, Jr.
dissented, concluding that "either a petitioner or a
respondent has a right to a jury trial following the [Civil
Service] Board's determination." Id. at __,
800 S.E.2d at 126 (Hunter, J., dissenting). Based on Judge
Hunter's dissent, Officer Frost exercised his statutory
right to appeal to this Court.
right to a jury trial exists only if provided for in the
North Carolina Constitution or by statute. Kiser v.
Kiser, 325 N.C. 502, 507-08, 385 S.E.2d 487, 490 (1989).
The parties do not dispute that there is no constitutional
right to a jury trial in this case. So this Court must
determine whether a respondent such as Officer Frost has a
statutory right to a jury trial in an appeal of an Asheville
Civil Service Board decision to superior court.
review questions of statutory interpretation de novo. In
re Foreclosure of Vogler Realty, Inc., 365 N.C.
389, 392, 722 S.E.2d 459, 462 (2012). The statutory provision
at issue in this case is section 8(g) of the Asheville Civil
Service Law, which states:
Within ten days of the receipt of notice of the decision of
the [Asheville Civil Service] 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 fact[s] upon which the petitioner
relies for relief. If the petitioner desires a trial by jury,
the petition shall so state. Upon the filing of the petition,
the Clerk of the Superior Court shall issue a civil summons
as in [a] regular civil action, and the sheriff of Buncombe
County shall serve the summons and petition on all parties
who did not join in the petition for trial. It shall be
sufficient service upon the City for the sheriff to serve the
petition and summons upon the clerk of the City. Therefore,
the matter shall proceed to trial as any other civil action.
Act of Aug. 3, 2009, ch. 401, sec. 7, 2009 N.C. Sess. Laws
780, 784 (captioned "An Act to Revise the Laws Relating
to the Asheville Civil Service Board").
City argues that the General Assembly intended only the
petitioner to have the right to a jury trial because section
8(g) says that, "[i]f the petitioner desires a trial by
jury, the petition shall so state." The City maintains
that this specific instruction for how a petitioner can
exercise the right to a jury trial without an equally
specific instruction for a respondent implies that a
respondent does not have the right to a jury trial. This
conclusion might make sense if section 8(g) said, for
example, that "the petitioner has the right to a jury
trial." Then we might infer that, by expressly saying
that one party has the right, section 8(g) was implying that
the other party does not. But the sentence in question does
not say that. It says only that, "[i]f the petitioner
desires a trial by jury, the petition shall so state."
In other words, it says how a petitioner can request
a jury trial. One can, of course, infer that a petitioner has
the right to a jury trial; it would not make ...