Haviland v. Foley , 55 Nev. 455 ( 1935 )

Prohibition lies to restrain boards exercising judicial or quasi-judicial functions. McBride v. Griswold, 38 Nev. 56, at p. 62, 146 P. 756; State v. Churchill County, 43 Nev. 290,185 P. 459; State v. Stevens, 34 Nev. 146, 116 P. 605; Brozie v. Fayette Co. Comm., 25 W. Va. 213; Fleming v. Kanawha Co. Comm., 31 W. Va. 608, 8 S.E. 267; 50 C.J. p. 675, sec. 41; Prairie Oil Co. v. Cruce, 45 Okla. 774, 147 P. 152.

The right of appeal from a decision of the board of governors of the state bar being limited to matters of disbarment or suspension, by sec. 26, if its trial de novo resulted in, let us say, a public reproval, such determination of the board would be final, and certainly would constitute the exercise of a true judicial power. Further, if the trial de novo be permitted, the board must (a) rule on the admissibility of evidence; (b) rule on any challenges made; both of which are of at least quasi-judicial nature. By virtue of the state bar act (N.C.L. sec. 571), the board of governors are expressly authorized to set aside the special committee's report and order a hearing de novo. There is no connection whatsoever between section 32 of the state bar act and rule XXXII of the rules of procedure. Rule XXXII, after providing for notice to the complainant and the accused of the report of the local administrative committee, provides a mode of procedure by which a hearing de novo (or the right to present additional evidence) may be secured by the complainant or the accused. The board of governors are in nowise referred to therein as having to follow this procedure in order to themselves secure a hearing de novo.

There is a plain, speedy and adequate remedy of review by the supreme court. Sections 26 and 38, State Bar Act; In re Scott,53 Nev. 24, 292 P. 291.

It is a settled rule in this state that prohibition only lies to restrain an inferior tribunal which exercises judicial functions from acting in excess of its jurisdiction. It does not extend so as to prohibit acts of a ministerial character. In re Cowles, 52 Nev. 171, 280 P. 644; O'Brien v. Humboldt County Commissioners, 41 Nev. 90, 167 P. 1007.

The board of governors of the state bar do not exercise judicial functions. In re Scott, 53 Nev. 24, at p. 38,292 P. 291; State ex rel. McCloskey v. Greathouse, 55 Nev. 409,36 P.2d 357.

OPINION On the petition filed herein an alternative writ of prohibition was issued restraining the respondents, composing the board of governors of the state bar of Nevada, from hearing de novo a certain proceeding instituted against petitioner before the local administrative committee for Washoe County.

In compliance with petitioner's request, the board of governors appointed a special committee to hear the matter. This committee heard the charges and filed its report, findings and recommendations. The committee found petitioner guilty of the charges in part, and recommended private reprimand. The board of governors at a special meeting set aside the findings and recommendations contained in the report of the special committee, and ordered that the matter be heard de novo by said board. Hence the application for a writ of prohibition in this court.

1, 2. I am of the opinion that this is not a case in which the remedy of prohibition may be invoked, for one reason, at least, advanced by respondents. Prohibition will lie to arrest judicial proceedings only. O'Brien v. Humboldt County Commissioners, 41 Nev. 90, 167 P. 1007; In re Cowles, 52 Nev. 171;280 P. 644. The board of governors do not exercise judicial functions. In re Scott, 53 Nev. 24, 292 P. 291; State ex rel. McCloskey v. Greathouse, 55 Nev. 409, 36 P.2d 357; In re Shattuck, 208 Cal. 6; Carpenter v. State Bar of California,4 P.2d 937.

The alternative writ and the proceeding should be dismissed.

It is so ordered.