Matthews v. North Carolina Department of Transportation , 35 N.C. App. 768 ( 1978 )

242 S.E.2d 653 (1978) 35 N.C. App. 768

Douglas MATTHEWS
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION and G. Perry Greene.

No. 7710SC271.

Court of Appeals of North Carolina.

April 4, 1978.

Sanford, Cannon, Adams & McCullough, by H. Hugh Stevens, Jr. and Hugh Cannon, Raleigh, for plaintiff appellee.

Atty. Gen. Rufus L. Edmisten, by Deputy Atty. Gen. William W. Melvin and Associate Atty. David Roy Blackwell, Raleigh, for defendants appellants.

MITCHELL, Judge.

The defendants first contend that, whether the trial court's orders were based upon alleged violations of the plaintiff's rights under the General Statutes of North Carolina or the United States Code, the trial court had no authority to enter orders staying the dismissal of the plaintiff before the exhaustion of his administrative remedies under the State Personnel Act, G.S., Chapter 126 and the Administrative Procedure Act, G.S., Chapter 150A. By these contentions the defendants have raised substantial issues which, for reasons hereinafter set forth, we need not reach.

Prior to oral arguments before us in this case, the plaintiff filed a "motion to dismiss appeal" in which he stated that the State Personnel Commission, by decision and order dated 4 May 1977, had remanded his case to the "third step of the grievance procedure of the Department of Crime Control and Public Safety for further proceedings." The plaintiff contends in his motion that the issues before us are now moot, as the order of the State Personnel Commission "has the effect, inter alia, of temporarily staying the plaintiff's dismissal and affording him the administrative remedies sought by his request for injunctive relief." During oral arguments, counsel for both parties informed us that, as a result of pursuing these grievance procedures, the plaintiff has been reinstated by administrative action, and that the administrative action has not been appealed by the Department of Crime Control and Public Safety. Counsel for both parties also agreed that the time for taking such appeal has run, and that the Secretary of Crime Control and Public Safety does not intend to attempt to appeal. As the preliminary injunction entered on 30 December 1976 continued the temporary restraining order of 23 December 1976 only "pending petitioner's exhaustion of all administrative remedies to which he is entitled," that injunction has now expired and is void by its own terms.

The general rule is that an appeal presenting a question which has become moot will be dismissed. Parent-Teacher Assn. v. Bd. of Education, 275 N.C. 675, 170 S.E.2d 473 (1969). That rule is subject to an exception, however, when the question involved is a matter of public interest. In such cases the courts have a duty to make a determination. Leak v. High Point City Council, 25 N.C.App. 394, 213 S.E.2d 386 (1975).

We find that the facts in the present case do not present us with a situation giving rise to the exception to the general rule. During the pendency of this action, the General Assembly has substantially amended the State Personnel Act, G.S., Chapter 126 by enacting Chapter 866 of the 1977 North Carolina Session Laws. We find that the substantial amendments to Chapter 126 contained therein, together with the fact that there no longer exists a controversy among the parties in this case, would render our determination of the issues sought to be presented by the defendants little more than an advisory opinion as to the effect of prior law on hypothetical parties. Parent-Teacher Assn. v. Bd. of Education, 275 N.C. 675, 170 S.E.2d 473 (1969) and cases cited therein; 1 Strong, N.C. Index, Appeal and Error, § 9, pp. 215-18. We decline to render such an opinion and hold the issues before us by virtue of our having granted the writ of certiorari are no longer matters of such public interest as to require us to resolve them by making a determination.

For the reasons previously stated herein, the motion to dismiss is well taken, and we order the

Writ of Certiorari dismissed.

MORRIS and CLARK, JJ., concur.