Brown v. Wetherington

300 S.E.2d 680, 250 Ga. 682, 1983 Ga. LEXIS 610
CourtSupreme Court of Georgia
DecidedMarch 9, 1983
Docket39202
StatusPublished

This text of 300 S.E.2d 680 (Brown v. Wetherington) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Wetherington, 300 S.E.2d 680, 250 Ga. 682, 1983 Ga. LEXIS 610 (Ga. 1983).

Opinions

Bell, Justice.

This is an appeal from an order removing appellants Brown and Hicks from the Monroe County Board of Tax Assessors (“the Board”). There are three seats on the Board.1 During much of 1981, the Board operated with only two assessors, Newton and Bryant. In January of 1982 Newton’s term expired, and on January 21 the county commissioners appointed Brown and Hicks to fill the two [683]*683vacant slots. Bryant resigned on January 31, and his position remained unfilled until February 16. In 1981 Brown had appealed an assessment on his own property. On February 12, 1982, Hicks, accompanied by Brown, inspected the property and the assessment was lowered.

Subsequently, over one hundred freeholders of the county petitioned the superior court pursuant to OCGA § 48-5-296 (Code Ann. § 91A-1439)2 to remove Brown and Hicks on the grounds that they were “not properly and impartially discharging their duties and [were] discriminating in favor of certain citizens and against others.” On March 16 the petition was ordered served upon appellants, and the matter came on for hearing April 7. On that day, appellants filed a motion to dismiss the petition, alleging among other things that the petition was so conclusory that it violated their due process right to notice of the specific charges against them and an opportunity to be heard. The trial court denied the motion, and directed petitioners to make out their case. After they had rested, and after appellants had completed a substantial part of their defense, the court interrupted the proceedings to confer off the record with counsel for the parties. After the conference, he announced that he was going “to narrow the issues a little bit in this case,” by giving “some direction to what I think the issues are and then giv[ing] everybody an opportunity to present more evidence on those issues or present legal argument on them.” He went on to say that he was most particularly concerned with the fact that the processing of Brown’s appeal had created the appearance of impropriety; he then adjourned the hearing. It was recommenced April 23, at which time the court heard additional testimony and arguments. Following that hearing the judge issued a written order with carefully limited findings. First, he found that appellants were not disqualified from holding office, and they were not discriminating in favor of certain citizens or classes of citizens and against others. Further, he found that if Brown had participated in the February 12,1982, reassessment of his own property, he would have had a conflict of interest. On the other hand, the court said, if Hicks had reassessed the property unilaterally, with Brown merely approving, the reassessment would have been nugatory because official acts of the Board require a majority of the three members, and Hicks had no authority to act alone.

However, the court found that it was unclear whether Hicks had [684]*684acted with Brown or without him. Instead of resolving this factual issue, he ruled that the certainty that one or the other breach of duty had occurred had cast “a cloud of suspicion over the board of tax assessors, and had ‘destroyed] any credibility this Board of Tax Assessors could ever have.’ ” He concluded that this appearance of impropriety amounted to a breach of their duty to properly and impartially discharge their duties, and removed them from of fice.

1) In their first enumeration of error, appellants complain that the court erred in denying their motion to dismiss on the ground that there had been no affirmative showing by appellees that the signatures on the petitions were in fact those of Monroe County freeholders. This contention has no merit. “The gist of [removal proceedings] is not how many complainants there are, but the truth or falsity of the charges. A complaint with more than the number of required signatures, sponsored by members of the bar, with nothing to reflect on the genuineness of the signatures or the good faith or competency of the signers, is presumably what it appears to be. If in fact enough of the signatures to reduce the whole to less than [the required number] are fictitious, or if the body of signatures is so saturated with forgery as to constitute a fraud upon the jurisdiction of the court, it is incumbent on the assailant of that jurisdiction to plead and prove such facts.” In re Bostwick, 181 NE 905 (43 Ohio App. 76) (1931); 67 CJS 615, Officers, § 177 (a).

2) Appellants also contend that the trial court should have granted their motion to dismiss on the basis that OCGA § 48-5-296 (Code Ann. § 91A-1439) violates the due process clause, Art. I, Sec. 1, Par. 1, of the Georgia Constitution (Code Ann. § 2-101). Specifically, they allege that the statute does not provide for notice and an opportunity to be heard as a matter of right. We do not agree.

[685]*685“ ‘It is an established rule that all presumptions are in favor of the constitutionality of an Act of the legislature and that it cannot lawfully be set aside by the court unless the alleged conflict with the Constitution is plain and palpable.’ ” Kirton v. Biggers, 232 Ga. 223, 226 (206 SE2d 33) (1974). “ ‘A statute complies with constitutional provisions as to due process where it provides for notice and hearing as a matter of right, either in express terms, or, . . . by necessary implication.’ ” Id.

Here, § 48-5-296 (Code Ann. § 91A-1439) provides that whenever 100 or more freeholders allege by petition that a tax assessor “is disqualified or is not properly and impartially discharging his duties or is discriminating in favor of certain citizens or classes of citizens and against others, the judge shall cite the member to appear before him at a time and place to be fixed in the citation, such time to be not less than 20 nor more than 40 days from the date of the presentation of the petition, and to answer to the petition. A copy of the petition shall be attached to the citation and service of the citation may be made by any sheriff, deputy sheriff, or constable of this state.” This statute expressly provides for both notice and hearing as a matter of right, and clearly meets our Constitution’s requirements of due process.

3) In appellants’ third enumeration, they argue that appellees’ petition contained only conclusory allegations which were insufficient to put them on notice of the specific charges against them, and that the trial court erred in denying their motion to dismiss on this ground. We agree. Notice of charges against a public official must be “ ‘ “in terms sufficiently explicit as to enable [the public officer] to make an explanation . . .” ’ [Cit.] Mere vagaries or generalities are insufficient, and the notice must be ‘sufficiently specific and detailed to convey to the [officer] the substantial nature of the charge without requiring speculation on his part as to the precise complaint he must answer.’ ” Hughes v. Russell, 148 Ga. App. 143 (251 SE2d 70) (1978).

Here, the allegations of the petition were no more than restatements of the statutory grounds for removal, and were inadequate to inform appellants of the misconduct with which they were charged. Hughes v. Russell, id. Compare Russell v. Hughes, 154 Ga. App.

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Related

Kirton v. Biggers
206 S.E.2d 33 (Supreme Court of Georgia, 1974)
Hughes v. Russell
251 S.E.2d 70 (Court of Appeals of Georgia, 1978)
In Re Bostwick
181 N.E. 905 (Ohio Court of Appeals, 1931)
Russell v. Hughes
268 S.E.2d 440 (Court of Appeals of Georgia, 1980)

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Bluebook (online)
300 S.E.2d 680, 250 Ga. 682, 1983 Ga. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-wetherington-ga-1983.