Clary v. Mathews , 224 Ga. 82 ( 1968 )

Undercofler, Justice.

This is an action to enjoin a grievance tribunal appointed by the State Disciplinary Board of the State Bar of Georgia from holding a hearing to determine whether probable cause existed for the issuance of a formal complaint against a member of the bar for the reasons that the members of said grievance tribunal were not appointed in accordance with the rules of the State Bar of Georgia; that one member of the grievance tribunal has. formed and expressed an opinion with reference to the guilt of the member complained against and is completely and unalterably prejudiced against him in said cause; that the State Disciplinary Board is acting as prosecutor, judge and jury because it issues the complaint, one member thereof is a member of the grievance tribunal, and the other two members are appointed by it; all of which facts deprive' the petitioner of a “fair” hearing and deny him due process and equal protection of law under the 14th Amendment of the Constitution of the United States. The petitioner alleges that he has no adequate remedy at law and that he will suffer irreparable damages unless equity intervenes. The trial court denied the injunction and the appeal is from that judgment. Held:

Generally, “In order to comply with the requirements of due process, the hearing granted by an administrative' body must be a full and fair one, before an impartial officer, board, or body free of bias, hostility, and prejudgment; but mere irregularity or error with respect to a hearing cannot be made the basis of a claim of denial of due process, and a person cannot complain of a defect in an administrative hearing as a denial of constitutional rights as long as he obtains a full hearing before a court on the question in issue. The fact that the administrative agency is both the accuser and judge does not deprive accused of due process of law, especially where an appeal from the determination of the agency may be had to the courts.” 16A CJS 862, § 628b (2). However, “All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Tumey v. Ohio, 273 U. S. 510, 523 (47 SC 437, 71 LE 749, 50 ALR 1243). See Jones v. State, 219 Ga. 848 (136 SE2d 358).

Upon reviewing the rules of the State Bar of Georgia, we find that the intent therein was to afford the member complained against a hearing before an impartial tribunal at all stages of the proceedings; however, no provision for entering such challenge is provided at the probable cause hearing. See Rule 4-206 (219 Ga. 873). Therefore, petitioner does not have a complete and adequate remedy at law and may resort to a court of equity to restrain a member from serving on such grievance tribunal when he is, as alleged, prejudiced against him in the cause.

Argued November 14, 1967 Decided February 12, 1968. Bobby Lee 'Cook, Cook & Palmour, Hugh J. Martin, for appellant. Warren Akin, for appellees.

The proof which counsel for the petitioner stated he would offer in support of the allegations of the petition at the hearing on the question of a temporary injunction would have been sufficient to authorize the trial judge in his discretion to issue the injunction. Accordingly, it was error to deny the injunction without the introduction of evidence.

Judgment reversed.

All the Justices concur, except Grice, J., who dissents.