concurring in part and dissenting in part.
I agree with the majority opinion in holding that respondent’s petition for discretionary review of an additional issue was improvidently allowed and in dismissing respondent’s notice of appeal asserting a substantial constitutional question. I dissent only from the majority’s affirmance of the Court of Appeals’ holding that the employee has the burden of proof in “just cause” termination cases pursuant to N.C.G.S. § 126-35.
In Soles v. City of Raleigh Civil Serv. Comm’n, 345 N.C. 443, 480 S.E.2d 685 (1997), we said, “[assuming a situation existed in which an employee was entitled to procedural due process protection, . . . the allocation of the burden of proof to a disciplined employee does not violate the employee’s guarantees of procedural due process.” Id. at 448, 480 S.E.2d at 688. In this case, on remand, the Court of Appeals decided, and the majority here concludes, that the burden of proof in “just cause” claims pursuant to N.C.G.S. § 126-35 may be allocated to an employee without violating due process. I agree. However, that is not the issue before us.
In the instant case, the State Personnel Commission (SPC) adopted the recommendation of the Administrative Law Judge (ALJ) placing the burden of proof on the Employment Security Commission (ESC) to demonstrate “just cause” for petitioner’s termination. Upon judicial review, the superior court held that this was an error of law. The question before the Court of Appeals then was whether it was error for the SPC, the agency charged with the administration and enforcement of the State Personnel Act, to allocate the burden of proof in “just cause” termination disputes to the employer in the absence of any statutory guidance. Soles does not answer that question, and I do not believe that the majority here directly addresses that issue.
On the merits, Judge Smith, writing for the majority of the Court of Appeals’ panel and citing 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 30 (4th ed. 1993), explains the distinctions between the burden of producing evidence and the burden of persuasion. He then continues as follows:
When statutes fail to dictate with whom the burden of persuasion lies, the burden is judicially allocated based on “considerations of policy, fairness and common sense ....” [1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 37 (4th *331ed. 1993).] For cases in which the burden of proof remains unallocated, it has been suggested that the burden be placed “upon the party who has peculiar knowledge of the facts and who, therefore, is better able to produce proof.” Id. In the instant case, the party having particular knowledge as to the cause of Peace’s dismissal is ESC. An employee allegedly dismissed for “just cause” would be faced with an almost insurmountable task in attempting to prove he or she was dismissed for something short of “just cause,” in that the employee would be forced to prove a negative. We believe the better view is to allocate the initial burden of proof to the employer to prove that an employee was dismissed for “just cause” and then have the employee come forward with evidence showing that his or her dismissal was made without “just cause.” Here, SPC expressly adopted the ALJ’s Conclusion of Law Number 2, which states “[w]here just cause is an issue, the Respondent [ESC] bears the ultimate burden of persuasion.” Taking into account “the specialized expertise of the staff of an administrative agency,” we give great deference to SPC’s decision to place the burden of proof on ESC. [High Rock Lake Ass’n v. North Carolina Envtl. Management Comm’n, 51 N.C. App. 275, 279, 276 S.E.2d 472, 475 (1981).]
Employment Sec. Comm’n v. Peace, 128 N.C. App. 1, 12, 493 S.E.2d 466, 473 (1997). I agree. I also agree with Judge Greene’s dissenting opinion in which he said:
I agree with the majority’s well-reasoned explanation of why the burden of proof in a termination without just cause case is more fairly placed upon the employer. I add only that this Court has repeatedly acquiesced in the placement of the burden of proof on the employer in just cause cases.... There is no pre-existing rule mandating placement of that burden on the employee in this case. Soles does not, either explicitly or implicitly, require courts to place the burden of proof on the employee in just cause cases.
Id. at 15, 493 S.E.2d at 475 (Greene, J., dissenting).
Again, in Soles, the City of Raleigh Civil Service Commission had a preexisting rule that a terminated employee must bear the burden of proving that the termination was unjustified. We held that Soles had no constitutionally protected property interest in his continued employment with the city, but even if he had such an interest, the allocation of the burden of proof to him would not violate procedural due process. Soles, 345 N.C. at 447-48, 480 S.E.2d at 688. However, in *332this case, although the General Assembly certainly could have directed by statute which party must carry the burden of proof in a disputed “just cause” termination, it has not. Thus, as the majority correctly notes, it is a matter for judicial allocation.
For the reasons stated in both the majority and dissenting opinions of the Court of Appeals, I would hold that the burden in this case was properly allocated to respondent ESC.
Justice Whichard joins in this concurring and dissenting opinion.